In a historic move, the Italian high court has allowed a trans woman to stay married to her same-sex spouse. This is bigger than just setting a much-needed precedent for trans rights, however, with activists believing that the ruling, if upheld, could bring about same-sex civil unions too.
The case was brought by bank worker Alessandra Bernaroli, 43, of Bologna in northern Italy. After Bernaroli completed her physical gender affirmation treatment in 2009 and sought to change her official ID records to reflect her female identity, she encountered little resistance or problem until, that is, the local courts dissolved Bernaroli’s marriage to her female partner. This was triggered because Italy does not recognize same-sex partnerships of any kind, let alone marriage, and so no one in Italy can officially change gender markers and remain married to someone of the same sex.
Bernaroli and her wife appealed that decision and lost, but in a stunning turnabout last week, the Italian Constitutional Court overturned the lower court’s ruling, saying that Bernaroli’s marriage must be allowed to continue.
The court framed this as a balancing act between “the State’s interest in not changing the model of heterosexual marriage with the interest of the couple where one of the two components changes sex.” While we might find this outmoded and even damaging to LGBT rights, the court ultimately recognized that the right to privacy and to decide when to dissolve a marriage should remain between Bernaroli and her wife. The court also called on Italy’s lawmakers to investigate alternatives to marriage that could accommodate same-sex couples — namely, civil unions.
This case will probably be appealed, but advocates are hopeful that the high court’s ruling is both thorough and well argued. If the ruling is upheld, it will likely mean that other trans people will be able to stay married when they transition. Others who have already gone through the legal transition process may seek to reinstate marriages that have already been dissolved.
Furthermore, there is the hope that based on previous rulings by the Constitutional Court, civil unions may not be far off. That’s because, while the Constitutional Court has not recognized a right to same-sex marriage, it has stated in no uncertain terms that same-sex couples are worthy of dignity and equal treatment under the law. On the back of that, we might see a situation like what happened in several Latin American states like Argentina where, before a same-sex marriage law was brought into force in 2010, same-sex couples were granted licenses on an individual basis. That was problematic of course and eventually lawmakers were forced to take action and pass legislation explicitly recognizing same-sex marriages. Even if same-sex marriage isn’t within reach now, equivalent partnerships might be a good stepping stone.
Currently, Italy remains one of the least LGBT-accepting states among leading European nations. While gay people are allowed to serve in the military and there are some gay-inclusive workplace protections in force, there is no same-sex partnership recognition and gay people are unable to adopt children. Nor are there any anti-bullying protections for LGBTs, despite repeated calls and evidence that Italy does have a serious problem with (particularly religiously motivated) homophobia in schools and in the public sector.
Gender change recognition is allowed, but the law requires surgery, which may not be medically necessary for people to live their lives gender aligned and almost certainly will be incredibly costly. This amounts to coerced surgical intervention. Despite a number of nations still forcing trans people through surgery, it is prohibited by European law and has been called unlawful and immoral by the World Health Organization.
As such, the Bernaroli court case is about much more than just one woman’s brave struggle to stay married to her partner because it may also be a means to end Italy’s intransigence on LGBT rights.
Yet for Alessandra Bernaroli, this is also a personal story. A love story, in fact. “My body may have changed, but the love between us remains the same. I’m acting to defend our marriage,” she is quoted as saying. “I fell in love with her nearly 20 years ago when I was a man and we love each other as much as the first day we met, despite the fact that after a long journey and many operations I became a woman. Why should the state now try to separate us?”
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