Prospective Developments in Italian Law Regarding 2SLGBTQ+ Families

Overview

In recent years, 2SLGBTQ+ communities across the globe have faced a backlash against 2SLGBTQ+ rights amidst a surge in elections of right-of-centre governments. The recently elected Italian government has begun enacting policies stripping away existing protections for 2SLGBTQ+ families. Canada itself has seen a public movement against trans rights. Canadian lawyers should take note of these trends and remember that Canadian law’s strength lies in its ability to evolve. That ability necessitates vigilance and effort to direct that evolution towards the preservation and enshrinement of rights.

Developments in Italian Law

In 2022, Giorgia Meloni was elected prime minister of Italy. Meloni is part of the Brothers of Italy, a far-right political party. Her platform included presenting herself as an enemy of the 2SLGBTQ+ people, specifically targeting gay parenting rights.[1]

Italy already had sparse protections for 2SLGBTQ+ families prior to Meloni’s election. Italy legalized same-sex civil unions in 2016, but has not legalized same-sex marriage. Italy has not given full adoption rights to same-sex couples. [2] Without clear rights, some Italian courts have ruled in favour of adoption. In June 2018, Milan’s mayor Giuseppe Sala registered birth certificates naming both same-sex parents.[3] Mayors of some other cities followed suit.[4]   Finally, surrogate pregnancies are illegal, but those desiring a family could go to a different country for surrogacy and return to Italy if they wished to pursue surrogacy as an option.[5]

Meloni quickly began targeting the workarounds 2SLGBTQ+ people living in Italy have been using. Since her election, major cities ceased automatically recording both 2SLGBTQ+ parents onto a child’s birth certificate.[6] Milan, the last holdout to the policy, was told by Meloni’s government that it had to stop the automatic registration in the spring of 2023.[7] As a result, the non-biological parent would need to go through an adoption process to acquire parental rights. The adoption process is complicated and can take years.[8]

In June 2023, a state prosecutor in Padua demanded the cancellation of 33 birth certificates of children with both lesbian parents on them and removing the non-birthing mother from the certificate.[9]

Meloni’s government has also moved to ban surrogacy. Meloni has proposed a bill making surrogacy a “universal crime.” Universal crimes are so serious that prosecutions can be commenced even if the crime was committed abroad.[10]  The penalty could result in up two years in prison as well as a fine.[11]

Part of the reason these erosions of rights have been possible in Italy is the lack of legislation protecting 2SLGBTQ+ rights. But Meloni’s government is not acting in a vacuum. 2SLGBTQ+ rights are under attack internationally. In Hungary, the right-wing government enacted laws prohibiting displaying 2SLGBTQ+ content to minors.[12] In the United States, the Florida government prohibits classroom instruction on sexual orientation and gender identity.[13] In many of these countries, 2SLGBTQ+ rights are being removed.

Canada

In 2023, Canadian legislative amendments have drawn attention to the rights of trans youth.

On October 20, 2023, the Government of Saskatchewan invoked the notwithstanding clause to pass Bill 137.[14] Under the new legislation, school employees must obtain parental consent before changing their use of the pronouns or name of a student under 16 years of age.[15] The invocation of the notwithstanding clause came shortly after a 2SLGBTQ+ organization, UR Pride Saskatchewan, successfully sought an interim injunction against the implementation of Bill 137 pending a Charter challenge. UR Pride Saskatchewan had launched a challenge against Bill 137 under sections 7 and 15(1) of the Charter. In granting the interim injunction, the Saskatchewan’s Court of the King’s Bench stated: “the public interest in recognizing the importance of the governmental Policy is outweighed by the public interest of not exposing that minority of students to exposure to the potentially irreparable harm and mental health difficulty of being unable to find expression for their gender identity.”[16]

In June and August, 2023, New Brunswick revised Policy 713, which was intended to create a safe environment at schools for 2SGBTQ+ children. In the revised policy, parental consent is now required for schools to use the preferred names of students under the age of 16.[17] When discussing Justin Trudeau’s criticism of Policy 713 in New Brunswick, Conservative Party leader Paul Poilevre stated that the Prime Minister should not have weighed in on Policy 713 and that he should “[b]utt out and let provinces run schools and let parents raise kids.”[18]

In September 2023, the Conservative Party of Canada discussed changes to policies regarding gender-affirming care. Approximately 69% of the delegation agreed to prohibit gender-affirming care being provided to youth under 18 years of age.[19] Poilevre is not bound by the positions adopted at the Convention.[20]

In the fall of 2023, rallies against trans rights and sexual and gender identity education in schools swept across Canada. 2SLGBTQ+ communities and their allies organized counter-protests in resistance. These rallies became severe enough that arrests were reported in Ottawa, Halifax, Vancouver, and Victoria.[21]

Transphobia and homophobia go hand in hand. The Supreme Court case of Hansman v Neufeld, decided in 2023, contained a factual background in which Mr. Neufeld began criticizing a British Columbia initiative to guide education on sexual orientation and gender identity. Mr. Neufeld began by criticizing the policies on gender identity, but his comments also included that children were “being taught that heterosexual marriage is no longer the norm” and that he supported traditional family values.[22] Mr. Neufeld’s criticisms began with trans people but broadened to demonstrate his disapproval of all members of the 2SLGBTQ+ community.

While this new legislation and rallies have focused on trans children, what affects one facet of the 2SLGBTQ+ community affects the whole community. Members of the community who are not trans still have the duty to protect trans rights.

Nothing is guaranteed

In Canada, 2SLGBTQ+ rights are protected both legislatively and under the Charter. All law is, however, subject to change.

For instance, in 2015, in Carter v Canada, the Supreme Court reconsidered the issue of medical assistance in dying. Twenty-one years prior, in Rodriguez v British Columbia (Attorney General), the Supreme Court had found that prohibiting medical assistance in dying was constitutional.[23] The Supreme Court in Carter noted that trial courts “may reconsider settled rulings of higher courts in two situations:  (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate.”[24] Carter ultimately found the prohibition unconstitutional.[25]

Canada’s legal system’s strength lies in its ability to flexibly respond to societal shifts and enshrine new rights and protections. Through the Canadian Charter of Rights and Freedoms, the Supreme Court and Parliament engage in a dialogue designed to balance that flexibility with solid protections of rights. A legal system must have room for evolution, but participants in the system must be aware that society is not on a straight or uncomplicated policy trajectory and public opinion of who deserves rights and protections has shifted throughout history. Accordingly, the advantage of the Canadian legal system, and its capacity for evolution, also carries the potential to either aspire towards or retreat from the protection of minority rights.

Canadian jurisprudence has yet to retreat from rights for 2SLGBTQ+ Canadians. Parliament has yet to strip away federal protections. Canadian jurists, however, bear the responsibility of remaining vigilant and contributing to tending the law.

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