Italy: Court Rules on Transgender “Same Sex” Marriage

Written by scott on June 11th, 2013

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Our friend Linda Giovanna Zambanini brings us this great report on a court ruling in Italy by one of the country’s high courts:

What could be an extremely important precedent-setting legal case for Marriage Equality in Italy, was just ruled on by the Court of Cassation (FYI – The Italian judicial system is a little confusing: the CofC is considered to be one of the 2 “supreme courts” of Italy, and is called “the supreme court”, but it is more like an appeals court. Its rulings are only binding on said case – not on the constitutionality of laws nationally.

That is the job of the other “supreme court”: The Constitutional Court aka “La Consulta.” But if the CofC deems a case to pose questions of a constitutional nature they can send it on up to the CC on their own.). The CofC found that the ruling of the lower court on the couple in question, likely impinged upon two fundamental constitutional rights, so it was sent up to the Constitutional Court (La Consulta) for a final ruling on the Constitutionality of the law, which would then impact all of Italy. (Details about the case to follow).

The English LGBT press has not yet reported on this case that I could find. And, unfortunately, I’ve yet to find any article in English, which mentions the importance of this ruling to Marriage Equality. So, i’m posting information and quotes I’ve compiled by translating from various Italian news sources. Below are posted a (crappy) article in English and a couple in Italian. Also I’m still trying to find out WHEN the Constitutional Court hearing will take place. I wrote to the author of an Italian LGBT legal blog to find out and will keep you posted! 🙂 This is veryyyyy exciting!

The case is as follows: A Bologna couple, Alessandro and Alessandra Bernaroli, had their marriage dissolved by the State against their will when the husband, Alessandro, changed sex and became Alessandra. The local marriage registry took note of her name change and automatically dissolved their marriage because it was a same-sex marriage.

The only other time the State can legally dissolve a marriage is upon the death of a spouse. So such a ruling basically negates the very existence of a person. The two women wanted to remain married, so they took their case to the local court of appeals in Bologna but lost in 2011, because to rule otherwise, the court would have admitted there could be same-sex marriages. They then appealed their case to the CofC – where it was heard on 6/6/13.

The CofC ruled they were forced into a constitutionally unbearable choice and sacrifice which involved choosing between 2 fundamental constitutionally protected rights: the right to self-determination (one’s gender) AND the right to marriage and family life including when and if to divorce.

The CofC held that the ruling violated Article 29 of the Italian Constitution: “The Republic recognizes the rights of the family as a natural society founded on matrimony. Matrimony 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.” And this builds on previous CC rulings in 2010 and 2012, that set precedent for marriage equality, which held that Art. 29 bestows an inalienable right to “family” and “matrimony” (or CU’s) on same-sex couples as well as opposite-sex couples.

A few choice sentences in the CofC ruling: “the choices belonging to the emotional and affective sphere constitute the foundation of self-determination” and “they are to be beyond any State interference” and “marriage is founded exclusively on the unswerving rule of consent.” Based on this foundation of “consent” the CofC sent the case up to the CC. Additionally, the CofC clearly affirmed: “the character of heterosexuality no longer constitutes, therefore, a rule of public order, either domestically (Constitutional Court ruling n.138 of 2010 and Court of Cassation ruling 4184 of 2012), or internationally (European Court of Human Rights ruling Schalk and Kopf)”

In addition, the Court ruled that the lower court ruling undermined, not only the fundamental rights of the spouse who changed sex, but just as much if not more grievously, the fundamental constitutional rights of her spouse, both to marriage and family life, and to her free will regarding if and when their marriage is dissolved.

**If the Constitutional Court agrees, it will be the precedent to introduce same-sex marriage in Italy.**

The Court also cited a recent European Court of Human Rights ruling, in a similar case of a Finnish spouse that had a sex change. Finland revoked their marriage and changed it to a civil union. The ECHR ruled that that was legal because the CU conveyed the same rights as marriage in Finland. However the CofC noted that Italy doesn’t even have Civil Unions to fall back on, so the lower court ruling was not compatible with the European Convention on Human Rights.


2 Comments so far ↓

  1. Robin says:

    The Italian judicial system seems to be similar to that of France and Belgium; the Court of Cassation rules in specific cases whether the law has been applied correctly in that case. The Constitutional Court checks whether a specific law is constitutional in general.

    In 2010, the CC already ruled that the same-sex marriage ban does not violate the constitution, saying it’s a matter for the legislators. But let’s hope they rule differently this time. Maybe they just rule that once married (legally), the marriage remains legal even when one changed sex.

  2. Linda Zambanini says:

    Yes, but they did rule that LGBT couples had a right to legal recognition, and all the rights of marriage for their unions, and that it was up to Parliament to create the laws establishing them. In May the President of the Constitutional Court, Franco Gallo, excoriated the Parliament because they had ignored the courts ruling and needed to get busy creating laws for same-sex unions.

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