mercoledì 11 giugno 2014

Italian Constitutional Court upholds same-sex marriage ban in a transgender marriage case.

On June 11, the Italian Constitutional Court uphold a law that impose divorce to trans married person who change his or her legal gender. However the same court found unconstitutional the same law when does not recognize the partnership situation created due to the change in the legal gender. 

According to the decision, this new situation is no longer a marriage, but a situation which the Parliament should regulate as a registered partnership, the court writes.

The Case
The case, B.A. e T.A. v. Ministry of Interior and othersis 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 married, Finale Emilia (Emilia-Romagna), dissolved their marriage because the couple was in a same-gender marriage. So 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. Afterwards 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.
Alessandra Bernaroli
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" and on June 6, 2013, it asked the Constitutional Court how to deal with this issue. Finally on June 10, 2014, the Constitutional Court heard arguments on the Bernaroli case and the day after the same court delivered the opinion.

Conflict of laws  
Now it's time to consider why the Constitutional court was asked to intervene. Let's start from some decades ago. 

In 1982 Italy became the third state in the world to recognize the right to transgender people to change their legal gender (Gender Recognition Act 1982). Before Italy, only Sweden (1972) and Germany (1980) provided such a right. 

Even though it did not oblige transgender people to undergo a sex reassignment operation, the Gender Recognition Act 1982 was interpreted to do otherwise. Recently some courts allowed trans people to amend their gender and their name before a sex reassignment operation.

When Sweden and Germany make possible for trans people to change their legal gender, these country considered the case of a married trans person. Sweden and Germany chose to require to married trans people to divorce before to obtain a gender change recognition. However, Italy traveled a different path. The Act of 1982, art.4, stated that when a court orders the recognition of the change in gender of a person, the order cause the dissolution of the marriage of the person (or the "cessation of the civil effects" of Roman Catholic marriage). The same article clarifies that dissolution of the marriage of a trans person who changes his or her legal gender should be done according the Divorce Act 1970.

Now it comes the problem. In 1970 Italy established for the first time the possibility to divorce. Then in 1987 that Act was amended to cover the case of trans people. But the new law (which is still in effect) deals with only the case of a married trans (or his or her spouse) that wants to divorce. Now the problem: What happens if nobody wants to divorce? The laws nothing say about that. 

Italian Constitution rejects same-sex marriage (or something like that)
In an unexpected speed the Italian Constitutional Court delivered the decision (sentenza 170/2014) on the Bernaroli case the day after having heard the arguments. This could prove that what the justices has written is flawed. 

In fact the High Court wrote that the heterosexuality is required for Italian marriage laws, and that if a married trans person change his or her legal gender his or her marriage this would be incompatible with the constitution. So marriage equality seems that won't be a reality in the near future. 

But in that opinion the court seems to have created a "law monster". The court assumes that even though this couple has become same-gender they can't be treated as a homosexual union because they were an opposite-sex couple once. So if the Parliament would have time to legislate on this issue it could keep marriage for heterosexual couple, create civil unions for gay and lesbians couples, and finally create registered partnership for people who are in the case of Bernaroli and her spouse (!). 

Finally the worst thing of this decision. We said that Bernaroli marriage can't be considered a marriage, as we already said, but at the same time the couple should be recognized. But how? The Parliament should regulate - the court writes - their partnership in an alternative way as of marriage. So Bernaroli and her spouse can wait for decades if we wait the Italian Parliament. 

-----------This article has undergone several changes--------

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