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.

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 to the same social rights enjoyed by heterosexual married couples. After a long battle between favourable and adverse, the bill has been approved 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 from sexual behaviours. Notwithstanding the implementation of this measure, as reported in an Italian newspaper in 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 months and 6 years for those who promote ideas of 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.