The Italian Constitutional Court decided to hear a case of a dissolved marriage in which the husband transitioned to the female sex. The court will have arguments on June 10, 2014, and it will decide on the same day.
In 1982 Italy became the third state in the world to recognize the right of a person to change his or her legal gender after a sex reassignment surgery. After the surgery the person ask a court to rectify his or her legal gender, but when a person is married the judgment of the court causes the dissolution of the marriage through a divorce trial.
In 1970 Italy became one of the last country in the world to legalize divorce (Divorce Act - Legge n. 898/1970). Article 3 of the Divorce Act provides that a spouse can ask a court to start the process of dissolution of his or her marriage in certain circumstances. Later the lawmaker amend the Divorce Act in 1987 (Legge n. 74/1987) in compliance with the Gender Recognition Act of 1982. Article 7 of the Divorce (Amendments) Act of 1987 adds to Article 3 of the Divorce Act of 1970 the circumstance of a person that has rectified his or her legal gender. In other words, when a married man or a married woman changes his or her legal gender her or his spouse can ask a court to dissolve their marriage.
But, what happens when neither the transitioned spouse nor his or her spouse ask a court to dissolve their marriage? This is the case pending before the Italian Constitutional Court.
The case, B.A. e T.A. v. Ministry of Interior and others, is the following: Alessandro and Alessandra got married in 2005. Some years after their marriage Alessandro realized to be a woman and decided to transition to the female sex. According to the Italian law Alessandro became Alessandra in 2009. Later the couple discovered that the county clerk of the place where they live, Finale Emilia (Emilia-Romagna), dissolved their marriage because the couple was in a same-gender marriage. The couple asked the Civil Court of Modena to nullify the act of the county clerk and the court sided with the couple on October 27, 2010. The Italian Ministry of Interior appealed the Civil Court decision to the Court of Appeal of Bologna and this time the court reversed the trial decision.
Later the couple appealed the decision of the Court of Bologna to the Supreme Court of Cassation which judges over "the uniformity of the laws". On June 6, 2013, the Supreme Court, which judges only on law matters, not factual ones, questioned the Constitutional Court whether the Gender Recognition Act of 1982 and the Divorce (Amendments) Act of 1987 are unconstitutional when they order the dissolution of marriage by applying the Divorce Act of 1970 even if the couple did not ask to do so.
The Constitutional Court is not the fourth grade of judgment of the Italian judicial system; every judges can ask this court to resolve a constitutional problem arose in a trial. If the Constitutional Court found unconstitutional a norm the court may annul it.
The Italian Constitutional Court will decide this case on June 10, 2014, and it will announce its decision on the same day. Maybe the court will publish its opinion in July.
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