(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
LEGAL INFORMATION
International Law
Italy is signatory to international treaties and human rights declarations prohibiting discrimination based on sexual orientation or gender identity, including the EU Framework Directive 2000/78/EC, which covers discrimination in the employment context and various areas of social life. In 2008 the country ratified the UN Human Rights Declarations on Sexual Orientation and Gender Identity , a General Assembly statement. The Holy See initially expressed strong opposition to the statement. After severe criticism from human rights defenders worldwide, the Holy See changed its position, indicating its opposition to criminal penalties for homosexual conduct to the General Assembly.
National Law
The Italian Constitution does not explicitly prohibit discrimination based on sexual orientation or gender identity. Articles 2 and 3 of the Constitution, which deal with human rights protection and the prohibition of discrimination, do not explicitly include LGBTI people. Thus, the Constitution allows for an interpretation of coverage that excludes sexuality and gender identity and, thus, fails to comprehensively counteract discrimination based on sexual orientation or gender identity.
Article 2 reads as follows:
‘The Republic recognises and guarantees inviolable human rights, both as an individual and in social groups where personality is developed, and requires the fulfilment of obligations of political, economic, social solidarity, against which there is no derogation.’
Article 3 reads as follows:
‘All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organization of the country.’
Art. 29 on marriage reads as follows:
‘The Republic recognises the rights of the family as a natural society founded on marriage. Marriage is based on the moral and legal equality of the spouses within the limits laid down by law to guarantee the unity of the family.’
Marriage
Under Italian domestic law the only recognized union between people is opposite-sex marriage. There is no alternative union for either same-sex or different-sex couples, therefore alternative forms of partnership have no means of recognition. The right to same-sex marriage has no constitutional legibility given the ambiguous concept of ‘natural society based on marriage’ under Article 29, which does not refer to either heterosexual or homosexual couples.
The legal recognition of same-sex union was first debated in 1988 . The proposed law concerned heterosexual and homosexual civil union, but was never discussed in parliament.
In 2005 the left-wing democratic DS party (democratici di sinistra) presented the Civil Contract of Solidarity known as PACS (Patti Civili di Solidarietà), promoting the introduction of certain rights for heterosexual and homosexual civil couples. However, the right-wing government discarded the proposal.
On 8 February 2007 , the Council of Ministers under Romano Prodi’s government approved the bill concerning the rights and duties of people permanently cohabitating, known as DICO (DIritti e doveri delle persone stabilmente COnviventi). The bill aimed to recognise the rights of homosexual and heterosexual unmarried couples. It was criticised by LGBTI rights activists who considered the bill to be too limited, and by Catholic associations and right-wing parties, which saw it as too liberal. Several demonstrations took place after the Council of Ministers approved the bill. The biggest demonstration occurred in 2007 when around 200,000 people participated in the so-called ‘Family Day’ in Rome, comprised of Catholics seeking to defend the traditional family model. With the downfall of the government in 2008, the bill was set aside.
In the meantime several Italian municipalities (Rome, Milan and Bologna) found a temporary solution for recognising some same-sex couples. Those couples who got married abroad are copied into the civil states’ registers of the municipality. In particular, the decision made by the Rome municipality was criticised by the Ministry of Interior and suspended by Rome’s prefect. On 10 th March 2015, the transcription of same-sex marriage was authorized by the Regional Administrative Tribunal of Lazio (TAR Tribunale Amministrativo Regionale).
In March 2015, the Italian Senate Justice Commission approved the basic text of the bill on civil union (known as bill Cirinnà). This bill aims to regulate civil union between same-sex people and foresees stepchild adoption if the child is the son or daughter of one of the two partners. Article 1 of the bill establishes that two same-sex persons can constitute a civil union through a declaration in front of the official of the civil state and two witnesses. The bill assumes that every Italian municipality must create a civil union book for same-sex people. According to the bill, same sex couples are entitled the same social rights enjoyed by heterosexual married couples. After a long battle between favourable and adverse, the bill has been approv ed by the Senate on the 25th of February 2016. In order to find an agreement between the parts and let the bill pass, significant changes were made to the original text. The main issue obstructing the approval of the bill was stepchild adoption, which was removed to ensure that an agreement between the factions was possible. The changes made to the original text caused discontent among the LGBTI community, as a result of this, several demonstrations took place in the major Italian cities to protest against the bill which, according to statement made by lgbti associations ignores the existence of same sex couple’s children and treat lgbt citizens as second class citizens. The bill still needs to be approved by the Chamber of the Deputy.
Discrimination
Same sex sexual acts are legal in Italy since 1890. In the same year Italy approved the equal age of consent for same-sex sexual acts. In 2003, the country applied European Directive 2000/70 through the legislative decree n. 216/2003, introducing the prohibition of discrimination based on sexual orientation. In 2001 Italy abolished blood donor discrimination for reasons related to sexual orientation through a ministerial decree, stating that the risk of infection does not arise from sexual orientation but sexual behaviours. Notwithstanding the implementation of this measure, as reported in an Italian newspaper on April 2015 , such discrimination has been found to be still occurring. For example, the general hospital in Milan excludes donor men who have had sex with men in their blood donation policy.
In September 2013, bill no.1052 (bill Scalfarotto) was approved at the Chamber of Deputies. The bill proposes a prison term of between 6 month and 6 years for those who promote ideas on sexual discrimination, take part in activities associated with the same purpose or encourage violence. This bill has been strongly criticised by opponents who considered it ‘liberticidal and limiting freedom of thought’ . Since its approval at the Chamber, the law remains stuck and has not been further discussed.
Law concerning gender identity/expression
Through law n.164/1982 , Italy established that gender categories can be amended on official documents. In 2015 the Court of Cassation decided that sterilization is not a requirement for changing sexual identities.
LGBTI rights to asylum in Italy
Article 10(3) of the Italian Constitution states that: ‘the foreigner who is not granted in his/her country the democratic freedom guaranteed by the Italian Constitution, has the right of asylum in the Republic territory according to the conditions established by law.’
Even though the country has not adopted its own organic national legislation on asylum, it has ratified the 1951 Refugee Convention. The Convention provisions were created to address the issues emerging in the period after World War II. The EU decided to unify the convention parameters on a European level through directive 83/2004, which has been implemented by Italy with the legislative decree 251/2007. This decree defines that administrative, legislative and judiciary measures discriminating against LGBT people constitute a form of persecution, which is one of the fundamental provision to obtain refugee status.
The 1951 Convention does not explicitly refer to sexual orientation as a form of persecution, but it provides for the recognition of persecution based on membership in a particular social group, and decree 251 establishes the recognition of LGBTI persons as a particular social group.
CASE LAW
Oliari and Others v. Italy, European Court of Human Rights, 21 July 2015
This is the case of two joined applications (nos. 18766/11 and 36030/11 ) made by three homosexual couples against the Italian Republic. After the failure of the request for the recognition of their relations to Italian courts, the applicants appealed to the Strasburg Court. On 21 st July 2015 the Court recognized the right to civil union for same sex-couples and found Italy to be in violation of Article 8 ECHR (European Convention of Human Rights) due to the lack of legislation recognizing and protecting civil union between same-sex partners.
Court of Cassation, 18 April 2012, n. 11586
The Court of Cassation affirmed the right to be granted international protection because of persecution based on sexual orientation. According to the Court, criminalisation of same sex conducts indicates that homosexual individuals are subject to persecution, regardless of whether criminal laws are enforced or not.
Gambian Man v. Minister of Interior, Venice Tribunal, 4 March 2016
The Tribunal of Venice granted subsidiary protection to a gay man from Gambia on the basis that he may face life imprisonment in his country of origin. The Tribunal affirmed the credibility of the applicant, as also reinforced by the sound documentation submitted to support the claim.
Pakistani Man v. Minister of Interior, Bari Tribunal, 4 December 2014
The Tribunal of Bari granted refugee status to a man from Pakistan, on the basis that his account was credible and consistent. Moreover, the Tribunal affirmed that criminalisation of same sex conducts constitutes a severe discrimination and poses restriction of the life of individuals.
Nigerian Man v. Italy Minister of Interior, Napoli Court, 25 October 2013
The Court in Napoli examined the legal recourse of a Nigerian homosexual man whose request of international protection in Italy had been rejected by the Interior Ministry. On 25 th of October 2015 the Court definitively declared the right of the Nigerian man to obtain refugee status.
Egyptian Man v. Italy Police Headquarters Milan, Rome Court, 18 November 2011
The Court in Rome examined the recourse of an Egyptian transsexual man whose request of international protection had been rejected by the Police Headquarters in Milan, due to his criminal records. The Court of Rome declared unlawful the rejection of the residence permit for humanitarian reasons, and granted humanitarian protection to the man.
PUBLIC ATTITUDES AND/ OR STATE’S CAPACITY TO PROTECT
The first homosexual public demonstration took place in Italy in 1972 in the city of Sanremo. The demonstration was a protest against the ‘International Congress on Sexual Deviance’. Several LGBTI organizations from France, the UK and Belgium participated in the event. In 1978 the first Gay Pride took place in Turin and from then on the event started to be celebrated in various Italian cities (in 2015 the celebration s were hosted in Rome, Milan, Verona, Bologna, Cagliari, Turin and Palermo).
A catholic priest was expelled by the Roman Curia for being homosexual. He was ordained by a bishop who was aware of his sexual orientation, notwithstanding that another bishop forced the man to abandon the priesthood. More recently, another catholic priest confessed his sexual orientation and showed his partner in public, declaring that church must recognise homosexual people. The priest was removed from his role.
A same-sex couple married in Argentina obtained a residency permit in the city of Parma for family reasons. The couple has been recognised as a family under Italian law even though their marriage is not legally recognised. As reported by the association Rete Lenford (see NGO section below for further information), this case is not the only one in the country. According to the same association around 50 residency permits for family reasons have been issued to same-sex couples by Italian police headquarters.
In the Italian political sphere five lesbian, gay, bisexual and transgender people were elected as members of the Italian parliament .
In 2012 the EU Agency for Fundamental Rights (FRA) organized the first EU-wide survey of LGBT people’s experiences of discrimination. Around 93,000 people responded to the survey of which 13,255 were Italian.
- 54% of the participants stated they experienced discrimination because of their sexual orientation;
- 20% felt discriminated at work or in the search for employment because of their gender identity and sexual orientation
- 34% had experienced discrimination when buying goods or accessing services like healthcare, social services or housing
During 2014 Italy saw the rise of anti-equality groups strongly refusing the inclusion of LGBTI and diversity issues in school curricula. The so called ‘gender theory’ or ‘gender ideology’, which refers to any argument in favour of equality or non-discrimination for LGBTI people and women, forms the bases of their protests. According to these protesters the introduction of the so-called ‘gender ideology’ in school curricula will cause the destruction of the ‘family’ and bring about general chaos.
In the same period when the debate about LGBTI rights had become the centre of public opinion and especially after the approval of the bill no.1052 against homophobia at the Chamber of Deputies in September 2013, a group known as ‘The Watchers’ (Sentinelle in piedi) arose in defense of the freedom of expression and to protect the traditional model of family exclusively composed by a man and a woman. The ‘The Watchers’ are a group of people that organized silent demonstrations in cities around Italy, standing for one hour with a book in their hands. According to their website the book represents an instrument of knowledge not manipulated by the media.
Several incidents of homophobic violence and discrimination occurred in Italy, the most recent events are listed here:
- June 2015 Northern Italy , Milan, a politician from the PD (Democratic Party) has been insulted and physically harmed by the café owner and one client.
- June 2015 Southern Italy , Cagliari, at the ‘Poetto’ beach two young girls were verbally attacked by an old man. The reason for the attack was a kiss between the two girls. Nobody intervened to defend the two girls who were forced to leave.
- July 2015 Southern Italy , Polignano a Mare, a 38 years old man was insulted and assaulted by two people for being homosexual;
- July 2015 Southern Italy , Cerignola, a 40 year old man committed suicide because his family never accepted his sexual orientation and he was constantly bullied. In 2011 he was stabbed by his younger brother for ruining family life due to his homosexuality.
A member of the PD (Democratic Party) Ivan Scalfarotto , decided in July 2015 to start a hunger strike as a protest against the lack of legislation protecting LGBTI rights in Italy.
On 11th July 2015 the sports magazine ‘Sportweek’ chose for the first time to use a picture showing two rugby athletes kissing on the cover and titled the issue: ‘Who is afraid of a kiss?’ The two players are members of the Libera Rugby Club, the first gay friendly rugby team in Italy.
The telephone company ‘ Telecom Italia’ was named the best company in the LGBT Diversity Index 2015 an annual survey of businesses compiled by Parks, an Italian LGBT workplace diversity and inclusion group. Telecom Italia earned the honour thanks to the introduction of a number of initiatives to promote LGBTI inclusion. Among the initiatives are the healthcare insurance extension and other benefits to all cohabiting couples irrespective of gender. Moreover, the company runs awareness-raising workshops for all staff around LGBT issues and has also taken part in a Government-backed scheme, Project DJ (Diversity on the Job), to help find employment for people who have been discriminated against.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
Arcigay
For information about migration: migra@arcigay.it
For legal advice: ufficio@arcigay.it
Tel: 051 0957241
Emergency contact (for LGBT Migration): +39 348/7669298
Fax: 051 0957243
Arcilesbica
MigraBo LGBTQI
The group “MigraBò LGBTQI” was formed in Bologna in 2012 with the aim to help immigrants of LGBTQI community (lesbian, gay, bisexual, transsexual, transgender, “queer” and intersexual) from any country to integrate easier in Italy and in the LGBTQI community.
The group relies on a network of organizations that deals with these migration issues, in Bologna and its surroundings.
One of the primary services offered by MigraBo LGBTQI is support and assistance during the initial stage of the asylum procedure for individuals seeking international protection in Italy due to persecution based on sexual orientation and gender identity. All services are provided free of charge and anonymity is guaranteed.
Movimento Identità Transessuale (Transexual Identity Movement)
Tel./Fax 051 271666
MIT is an association which aims to protect human rights. The association provides the first clinic for transsexual health in Europe, a legal help desk and a documentation centre. It is active in the reduction of the damages caused by prostitution, provides reception for those in housing emergency conditions and guarantees a safe place for victims of exploitation and human trafficking.
Rete Lenford – Avvocatura per i diritti LGBTI (Professional body of lawyers for LGBTI persons)
For help request and to contact a lawyer: sos@retelenford.it
Tel. & Fax +39 035 19904497
Rete Lenford is an association formed by a group of lawyers, aiming to develop and spread respect for LGBTI persons. The association provides legal protection to LGBTI people, and in particular works to counteract discrimination.
COUNTRY OF ORIGIN SPECIALISTS
We do not currently list a specialist on LGBTI issues in Italy, but we welcome suggestions.
Researched by: Nicoletta Idili
Email: Nicoletta.idili@gmail.com