Gender reassignment and civil unions

Gender reassignment after a transition process is ruled by Law No. 164 of April 14, 1982 (Provisions on the Legal Recognition of Gender). This provision should be understood as an expression of an evolving legal culture, attentive to human dignity and, therefore, committed to allowing the alignment of physical characteristics with sexual identity, so as to ensure the well-being of the individual and also promote clarity in social relationships (Constitutional Court, No. 161/1985).

In this context, the Constitutional Court (Judgment No. 143/2024) ruled on the possibility of proceeding with a non-binary gender rectification. According to the hypothesis put forward by the referring court, gender dysphoria may, in fact, also pertain to non-binary identities, which are increasingly regulated by European legal systems. Moreover, gender identity is a constituent element of the right to personal identity, which is part of the fundamental rights of the individual. An individual’s perception of not belonging to either the male or female gender causes psychological and physical distress that undermines the person’s dignity and health, hence the proposed need to introduce a third gender as a possible outcome of the sex reassignment process.

According to the Court, the introduction of a third, non-binary gender would have far-reaching consequences in various areas of the legal system, including civil status regulations, family law, and labour law. Therefore, it deemed the matter inadmissible, as it exceeded its powers, especially in the absence of a well-established scientific consensus on the existence of an additional sex. The issue must be addressed by the legislature through informed decisions that reflect social sensibilities.

In the same ruling, the Constitutional Court declared the constitutional illegitimacy of Article 31, paragraph 4, of Legislative Decree No. 150 of 2011 for violating Article 3 of the Constitution, insofar as it requires court authorisation for medical-surgical treatment, even where changes in sexual characteristics that have already occurred are deemed sufficient for the approval of the application for sex reassignment. In line with previous case law (Constitutional Court, No. 221/2015), it is reiterated that surgical treatment is only one of the possible means for altering sexual characteristics, which may also occur through hormonal or psychological-behavioral treatments. Therefore, the individual is free to choose the methods by which to proceed with gender transition, in accordance with their right to self-determination.

Medically Assisted Reproduction

Medically assisted reproduction is governed by Law No. 40 of 2004, which defines this practice as a last resort, permissible only when no other therapeutic methods are available to resolve issues of sterility or infertility. Same-sex couples are not included among these, as consistently affirmed by previous rulings of the Court of Cassation (Constitutional Court No. 79 of 2022; Court of Cassation No. 22179/2022). Furthermore, the aforementioned law restricts access to medically assisted reproduction techniques solely to adult, opposite-sex couples who are married or cohabiting (Art. 5). This legal framework is reaffirmed in the ruling of the Court of Cassation, First Civil Section, No. 4448 of February 20, 2024, concerning an appeal filed by a female couple who had undergone medically assisted reproduction in Spain and, upon returning to Italy, had listed both as mothers on the birth certificate. However, the municipality of residence of the appellants subsequently corrected the birth certificate, listing only the woman who gave birth as the mother. The Court of Cassation dismissed the appeal, recognising the validity of the correction procedure, which may also be carried out to cancel or amend irregular documents, such as the one in the case at hand. In fact, there is currently no legislation recognising the right of same-sex couples to access assisted reproduction, and a request to record a birth certificate listing also the intended parent cannot be granted.

A similar case was brought before the Court of Cassation, which issued its ruling in Order No. 511 of January 8, 2024. In the case in question, the appellants, who were married in the United States, subsequently underwent heterologous fertilisation in Denmark. Upon the child’s birth in Italy, the two women requested that both be listed as mothers on the birth certificate, arguing that Law No. 40/2004 permits the designation of parenthood even for a same-sex spouse who has consented to medically assisted reproduction. Furthermore, the appellants requested that the law of Wisconsin—where the biological mother is a citizen—be applied, as it recognises same-sex parenthood following assisted reproduction. The Court of Appeals had held that Article 33 of Law No. 218/1995 was applicable, according to which the status of a child is determined by the child’s national law or, if more favourable, that of the state of which one of the parents is a citizen—in this case, that of the U.S. state. However, the Court of Cassation held that this application was erroneous, since the aforementioned Article 33, titled “Parentage,” exclusively sets forth the criteria for identifying the applicable law in determining the status of a child and does not, however, govern the issuance of birth certificates. In conclusion, without prejudice to the Court’s authority to determine ex officio the applicable foreign law, the Court of Cassation held that, in the present case, the conditions for applying foreign law were not met. The appellants, in fact, were not seeking recognition of a document validly issued abroad, but rather the issuance of a birth certificate, which is governed exclusively by domestic law and falls within the jurisdiction of the registrar. Ultimately, the Court quashed the decision of the Court of Appeal and dismissed the original claim, confirming that it was not possible to list both women as the child’s mothers on the birth certificate.

In a subsequent ruling, the Court of Cassation addressed the registration in Italy of the birth certificates of two children born via surrogacy in the United States to a same-sex couple. Following the civil registrar’s refusal to register the birth certificate listing both parents, the petitioners alleged a violation of various constitutional principles, such as the right to family life, and international principles stemming from the Convention on the Rights of the Child. Furthermore, they argued that state authorities, when registering a birth certificate already validly issued abroad, were required solely to assess its compatibility with international public policy, without entering into the merits of the case. . The Court of Cassation confirms that the use of surrogacy violates women’s dignity. Therefore, a foreign birth certificate that recognizes the intended parent alongside the biological parent cannot be automatically registered. The recognition of such a foreign document is barred by Law No. 40/2004, which, pursuant to Article 12, prohibits surrogacy and imposes criminal penalties. Furthermore, the judge is precluded from assessing on a case-by-case basis whether the surrogacy practice violated a woman’s dignity or whether it conflicts with international public policy. In conclusion, the decision of the Registrar is in accordance with the principles of domestic law, and the appeal is therefore dismissed.

Enslavement

The Criminal Cassation Court (Section I, Judgment No. 14843 of February 28, 2024) established that the offence of enslavement coexists with the crime of trafficking in free persons, as neither a special relationship between the two offences nor the criterion of absorption is applicable. In the matter at hand, two Nigerian sisters were enticed from Nigeria with the promise of employment in Italy; subsequently, they were compelled to abscond from the reception centres where they had been placed and were transferred to the premises of other individuals. Therein, they were coerced into prostitution to settle the debt incurred for their travel and accommodation. Throughout this period, the women endured threats, physical assaults, and sexual violence, thereby suffering a "significant impairment of their capacity for self-determination." The Court determined that the crime of enslavement is not subsumed by that of trafficking in free persons, given that the two acts are entirely distinct.

With judgment no. 20726 of March 28, 2024, the Criminal Cassation Court, Section IV, held that the crime of human trafficking encompasses multiple instances and provides for two alternative forms of conduct. The first type of conduct pertains to the recruitment, introduction into the territory of the State, transport, and transfer of authority over one or more persons who are in a state of slavery or servitude, and requires general intent. The second type, conversely, involves a specific intent, namely the purpose of exploiting the victims (who are not necessarily in a state of slavery or servitude) through labour, sexual services, begging, or other illicit activities, or even through the removal of organs. In the case under review, the Court ascertained that the defendants operated within a criminal organisation active in Libya, dedicated to managing illegal detention camps where numerous migrants intercepted during their migratory journey were held. The victims were subjected to enslavement and subsequently taken to "safe houses" and segregated for extended periods. During their detention, the victims were subjected to systematic physical and psychological violence in order to force them to remit sums of money as the price for their liberation. Following payment, the migrants were transported to the Libyan coast and compelled to board vessels to continue their passage to Italy. The Court clarified that this conduct constitutes the first offence under Article 601 of the Criminal Code, specifically, the recruitment, transfer, and introduction into the territory of the State of persons in conditions of servitude or slavery. Consequently, it is not requisite to demonstrate a specific purpose of further exploitation, as the state of slavery inherently implies exploitation. The ruling affirms that the defendants' participation in a criminal organisation that intercepts and enslaves migrants fully constitutes the criminal offence of human trafficking.

End of life

In its ruling no. 135 of July 18, 2024, the Constitutional Court declared unfounded the questions regarding constitutional legitimacy raised by the Court of Florence in its order of January 17, 2024. These questions referenced Articles 2, 3, 13, 32, and 117 of the Italian Constitution, the latter provision in conjunction with Articles 8 and 14 of the European Convention on Human Rights (ECHR).

Article 580 of the Italian Criminal Code criminalises assisted suicide. However, the constitutionally oriented interpretation of this provision mandates that such conduct shall not be subject to penalty provided five specific conditions, as established by the Court in judgment 242/2019 (and further referenced in order 207/2018), are met. The stringent verification of these conditions serves to prevent undue pressure and to safeguard vulnerable individuals. These conditions are: (a) the irreversibility of the disease; (b) the presence of physical or psychological suffering; (c) the patient's subjective assessment of this suffering as intolerable; (d) the patient's dependence on life-sustaining treatment; and (e) the patient's capacity for free and informed decision-making. The assessment of these conditions must be performed by a public entity within the National Health Service (SSN).

The referring court argued that the criterion of dependence on life-sustaining treatment introduced discrimination among categories of patients who share the common circumstances of unbearable suffering and the desire to terminate their lives, thereby conflicting with other fundamental rights affirming the individual's right to self-determination. The Constitutional Court, however, deemed the distinction between the refusal of treatment—characterised as passive conduct—and assisted suicide—which entails active conduct by third parties—to be constitutionally legitimate. Consequently, the differentiation between patients dependent on life-sustaining treatment, who may cease it by exercising their right to refuse treatment, and patients not dependent on such treatment, for whom the non-punishment clause for assisted suicide is inapplicable, does not constitute unequal treatment prohibited by Article 3 of the Constitution.

Pursuant to Law 217/2019, the patient, in consultation with healthcare professionals, possesses the right to refuse or request the discontinuation of any medical treatment, including those deemed necessary for survival. In essence, the legislation acknowledges the patient's autonomy to allow for the cessation of life. Nevertheless, under the current legal framework, patients who are not dependent on life-sustaining treatment lack the option of passively allowing death merely through the refusal of treatment, pending the enactment of relevant national legislation on the matter.

The Court acknowledged that other European constitutional courts (in Austria, Germany, and Spain) have recently recognised the legitimacy of euthanasia and assisted suicide as an implementation of the individual's right to decide their own destiny. Notwithstanding this, the Court emphasised the potential risks associated with this choice. These risks encompass not only the potential for abuse of patients' self-determination by third parties but also the possibility that permissive legislation concerning assisted suicide or euthanasia could exert indirect social pressure upon ill, frail, or elderly persons.

Finally, regarding Article 117 of the Constitution and the provisions of the ECHR, the Court noted that the jurisprudence of the European Court of Human Rights (ECtHR) does not impose an obligation upon States to legalise assisted suicide, granting them a wide margin of appreciation in this domain. Consequently, the questions presented by the referring court were deemed unfounded.

Incitement to commit suicide

The Criminal Court of Cassation, Fifth Section, through judgment no. 17965, issued on February 14, 2024, annulled the contested judgment and remanded the case to the Court of Assizes of Appeal of Catania for a new trial. The previous judgment had convicted the defendant of incitement to suicide, predicated on the reinforcement of the victim's expressed suicidal intent. The facts of the case date back to 2017, when the victim initiated contact with the defendant, who presided over the Exit Italia association, operating in coordination with the Swiss organization Dignitas, where the assisted suicide subsequently occurred in 2019. The lower court's reasoning posited that the prolonged conversation with the defendant had served to reinforce the suicidal ideation.

The Court of Cassation, however, established that since the self-harming behavior of the suicidal individual is not inherently criminal, the offense of aiding suicide necessitates moral or material involvement in the conception or execution of another person's self-destructive intent. In this context, the perpetrator's conduct must have objectively and concretely contributed to the suicide, which remains, nonetheless, a choice and action directly undertaken by the suicidal person. Furthermore, the perpetrator is not required to act with the specific aim of causing the suicide; the offense merely mandates generic intent, meaning awareness and acceptance of the potential outcome of one's actions.

From this perspective, the conviction pronounced by the trial judge appeared inadequate in specifically identifying the actions attributable to the defendant. If the statements made during the telephone conversation were deemed to constitute the typical conduct of the crime, the Court should have elaborated on the mechanism through which these revelations reinforced the desire to commit suicide. Consequently, the Court of Cassation, citing a lack of adequately substantiated reasoning and insufficient evidence concerning the typicality of the conduct and the requisite causal link, overturned the conviction and remitted the case to a different section of the Court of Assizes of Appeal of Catania for re-examination.

Prostitution

The Criminal Court of Cassation, through judgment no. 33336 of 15 July 2024, partially annulled the judgment of the Court of Appeal of Bari concerning the solicitation, aiding and abetting, and exploitation of prostitution. This included the application of the aggravating circumstance stipulated in Article 4, no. 7-bis of the Merlin Law (Law 75/1958), pertaining to the exploitation of prostitution of drug addicts. The appellants argued that, by applying this aggravating circumstance, which mandates the doubling of the penalty, the court failed to differentiate between 'drug addiction' and 'dedication to the use of narcotic substances,' thereby applying the aggravating circumstance to an individual who used narcotics but was not 'addicted.' The Court of Cassation deemed the grounds for appeal unfounded. The term 'drug addict' must be interpreted in light of the law's underlying rationale. It consequently encompasses individuals who abuse narcotics and engage in sexual activity to procure drugs. According to the Court, a formal medical assessment of drug addiction is therefore not requisite.

The Court of Appeal of Ancona, in its judgment no. 1837 delivered on October 2, 2024, upheld the conviction of an individual found guilty in 2023 of aiding and abetting prostitution. The defendant, who managed three distinct nightclubs, was found to have organized the prostitution of several employees. The Court of Appeal confirmed that any activity facilitating and encouraging the prostitution of others constitutes the offense of aiding and abetting prostitution, irrespective of any underlying speculative intent, as such activity establishes conditions that ease the engagement in the practice. Objectively, this offense is perpetrated through any action promoting prostitution, while subjectively, mere awareness of facilitating the activity suffices, as the motive for the action is irrelevant for the purpose of establishing the offense.

The Criminal Court of Cassation, Third Section, with judgment no. 9231 of October 9, 2024, rejected the appeal filed against a conviction for the crime of aiding and abetting prostitution in conjunction with others, pursuant to Articles 110 of the Italian Criminal Code and 3, paragraph 1, no. 8, and 4, no. 7, of Law no. 75/1958. In the case at hand, the defendant had disseminated advertisements on the website 'Bakekaincontri' promoting the prostitution of several women, with the intent of acquiring new clients. The appellant had argued that the mere collection and publication of advertisements by individuals offering paid sexual encounters, whether in printed or digital format, constituted a neutral activity, unrelated to the practice of prostitution and not in itself sufficient to establish a criminal offense. According to the Court of Cassation, the publication of advertisements constitutes aiding and abetting prostitution if it is supplemented by additional activities aimed at facilitating the approach. The defendant did not confine herself to publishing advertisements but also ensured their maximum appeal in order to progressively increase the prostitution activities carried out by the individuals concerned.