A new ruling from the Constitutional Court regarding non-binary identity

Translated by Giulia Maffeis

On July 23, 2024, ruling 143/2024 of the Constitutional Court regarding the issue of gender reassignment and non-binary identities was filed.

The topic of constitutional legitimacy was raised by the Court of Bolzano, following the request of an individual to have their registered gender changed from "female" to "other."

The judges of the Constitutional Court stated the request to be inadmissible, claiming that the law does not provide for gender reassignment to result in the attribution of a "non-binary" gender (neither male nor female).

Regardless, the Court highlighted the importance of protecting those who do not identify as either female or male: "the individual's perception of not belonging to either the female or male sex – which gives rise to the need to be recognized in an 'other' identity – creates a significant discomfort concerning the personalist principle that the constitutional system recognizes as central (Art. 2 of the Constitution)" and "to the extent that it can induce unequal treatment or compromise the psychophysical well-being of the person, this condition can, in a similar manner, raise an issue of respect for social dignity and protection of health, in light of Articles 3 and 32 of the Constitution."

The Constitutional Court judges issued a warning to the Legislator, as the "primary interpreter of social sensitivity," to potentially introduce a third gender category into the Italian legal system.

The Court of Bolzano also raised an additional issue: that the individual be granted the right to undergo a mastectomy (breast removal), despite not wanting male gender on their documents.

Concerning this, the Court upheld the issue, declaring the unconstitutionality of Article 31, paragraph 4, of Legislative Decree No. 150 of 2011, in the part that requires court authorization for medical-surgical treatment in any case. According to the judges of the Constitutional Court, transgender individuals who have already received medical authorization to begin the hormonal transition and have been authorized by the court to change their gender on documents should be considered de facto authorized to access surgical operations as well, without further court authorization. This reduces time and costs for applicants and lightens the courts' workload.

Once again, the Constitutional Court has proved itself to be aware of a societal need, calling on the Legislature to regulate the issue, aligning with the rights present in other European countries.

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