by Sergio Sulmicelli*
With the decision n. 134/2024, the Italian Constitutional Court declared unconstitutional the provision requiring judicial authorization for medical-surgical treatment to modify sexual characteristics, thus guaranteeing access to medical interventions for the adaptation of sexual characteristics on a purely clinical basis, which no longer require judicial authorization. In the same decision, the Court declared inadmissible the question of constitutional legitimacy raised by the referring tribunal regarding the failure to provide for the possibility of changing the sex recorded on the birth certificate to something other than male or female sex.
Facts
The Tribunal of Bolzano was petitioned by L.N., a person assigned female at birth who does not identify with the assigned sex or with the male sex, but with a non-binary gender. After seeking help from public health facilities, the person received a diagnosis of gender dysphoria or incongruence for non-binary identification with a masculine inclination. The individual asked the court to change his or her gender designation from female to “other sex” and to recognize the right to undergo any medical-surgical intervention.
Constitutional issues
Against this factual background, the referring Tribunal raised questions regarding the constitutional legitimacy of art. 1 of Law 164/1982, alleging violations of Articles 2, 3, 32 and 117 of the Italian Constitution, the latter in relation to Article 8 of the ECHR, in that it does not provide for the possibility of civil sex reassignment to «other sex» other than male and female (hereafter “third gender” option). Moreover, it questioned the legitimacy of Art. 31 para. 4 of Legislative Decree 151/2011, alleging violations of Articles 2, 3 and 32 of the Constitution, as it requires judicial authorization for medical-surgical treatments to adjust sexual characteristics.
The Court’s reasoning
The Court addressed the two issues separately:
- Art. 31 para. 4 of Legislative Decree n. 151/2011:
The article in question provides that «if the adjustment of sexual characteristics through medical-surgical treatment is necessary, the court shall authorize it by a final judgment».
According to the constitutional judges, this provision is irrational in the context of the legal framework established by previous court rulings. First, the Court noted that when the provision was introduced with Law 164 of 1982, it was intended to provide certain safeguards as the Italian legal system began to recognize gender reassignment.
However, the judges argued that the provision now stands out as an anomaly in the broader trend of allowing sex reassignment on the basis of individual self-determination, while the Italian norm retains «paternalistic» characteristics. Although the Court did not consider the provision unreasonable per se and recognized the legislator’s discretion, it found it “irrational” when it was not in line with the evolving legal framework, including the Court’s previous rulings. In particular, in judgment 221 of 2015, the Court ruled out that the modification of sexual characteristics required for legal gender reassignment must necessarily include surgical treatment, considering it as only one possible means to achieve full psychophysical well-being. Furthermore, in judgment 180 of 2017, the judges stated that for legal sex reassignment it is sufficient to confirm the transition of gender identity.
Therefore, it is irrational to subject medical-surgical treatment to an authorization regime, since the legal system already allows sex reassignment without necessarily requiring such interventions.
- Art. 1 of Law n. 164/1982:
The Court declared inadmissible the question concerning the provision that allows for a change of sex by final judgment only to male or female sex and not to another sex.
The Court held that such a normative change could only be made by legislative intervention. While recognizing the constitutional importance of the issue raised, the potential impact on the legal system exceeded the Court’s scope of review. The judges acknowledged that such a change would require legislative action in various areas of the legal system that are currently based on gender binarism: family law (regarding marriage, civil unions), affirmative action for female workers, labor law, and privacy rights in places such as prisons and hospitals, as well as in sports law for categories of competition.
Nevertheless, while the Court did not move beyond the binary gender perspective, it recognized the social condition of non-binary individuals based on clinical considerations and comparative legal experience. Clinically, the Court acknowledged the reality of non-binary gender as documented by the health care structure in the case, noting that both dysphoria and gender incongruence encompass gender definitions beyond female and male as outlined in the DSM-5. By comparison, the Court noted that several European legal systems have recognized and regulated non-binary identities in various ways. However, it also referred to the European Court of Human Rights, which has not imposed a positive obligation on states to register non-binary identities because there is no established European consensus on the matter.
Some initial remarks on the decision
The decision described is of considerable interest for three main reasons:
- The scientific dimension underlying the Court’s reasoning.
- The comparative dimension.
- The role of the legislator.
With regard to the first point, the ruling on the authorization of medical interventions is in line with a series of decisions that place the evolution of medical and scientific understanding of sex reassignment at the core of the assessment of the constitutionality of Italian law in this area. Following the cited judgments 221 of 2015 and 180 of 2017, the Court appears to have taken another step forward in disentangling the relationship between gender transition, sex reassignment and surgical intervention, focusing on a broader recognition of the personalistic principle of Article 2 of the Constitution and the principle of self-determination, which currently partially informs sex reassignment. Indeed, it is possible to highlight how, in the light of the legal framework resulting from previous decisions, the Court adopts what the doctrine has described as the «principle of reasonableness-coherence» in matters concerning the relationship between law and science. In this sense, the constitutional illegitimacy of the provision does not derive from its content. The Court recognizes the legislator’s discretion in establishing an authorization regime in the face of a medical decision described as irreversible in its effects on the subject’s body. However, the illegitimacy of the norm arises from the fact that there is another norm – the one which does not require surgical intervention for authorizing sex reassignment – creating an insurmountable logical contradiction between the two which the Court is obliged to overcome. At the root of the contradiction identified by the Court is a technical-scientific consideration that recognizes the unnecessary nature of medical-surgical treatment for sex reassignment. Thus, the judgment reflects a broad recognition of the personalistic principle and the role of self-determination. Specifically, by abolishing the authorization regime for medical intervention, the Court further translates the personalistic principle derived from the combined reading of Articles 2, 3 and 13 of the Constitution into operative norms. Indeed, it is in the interest of the greater psychophysical well-being of the person that the Court recognizes that the prescribed authorization no longer corresponds to the rationale of the law.
The second point of interest concerns the use of comparative law by the Constitutional Court, which was addressed in the two constitutional questions raised. With regard to the authorization of surgical intervention, the Court recognizes, although without citing comparative experiences, that Italian law is unique in the comparative landscape, in contrast to other experiences that tend towards a progressive focus on personal self-determination in terms of gender identity. Even more significant is the comparative overview described by the Court on the issue of the “third gender”. Indeed, in order to highlight the regulatory development in this area following significant and disruptive social progress, the Court refers to German legislation that has recognized and regulated the civil registration of non-binary identities, and to the judgment of the Belgian Constitutional Court that recognized an unjustified unequal treatment between those who identify with the male and female sexes and those who do not identify with either of these sexes. However, the Court also noted that there are conflicting trends on this issue, citing the experience of the United Kingdom, where the Supreme Court ruled out the need to provide for a third gender for non-binary identification on passports, and the decision of the European Court of Human Rights (Y v. France, 2023), which ruled out the mandatory nature of such a legal provision precisely in light of the lack of consensus among states on the matter. The comparative overview is described with the aim of highlighting the legal significance of this issue within different legal systems, as well as to indicate that as the comparative landscape continues towards the progressive acceptance of the third gender even at the legal level, the Court cannot eventually ignore the need for an adjustment to the social context. The Court’s attention to comparative law serves not only to provide a broader context but also to underscore the pressing importance of addressing this issue within Italy’s legal framework, signaling that as international and European standards evolve, Italian law might also need in the near future to adapt accordingly.
The third point to emphasize is the Court’s renewed respect for the role of the legislator as the translator of social progress into law. Even when recognizing the unconstitutionality of the law requiring authorization, the Court stated that the resolution of the law’s constitutionality was not based on an unreasonable choice by the legislator, but on an internal irrationality of the legal system. However, with respect to the constitutional issue of the absence of an “other sex” category other than male and female, the Court opened a window into the lived experience of non-binary individuals. In this regard, the first thing to rule out is that the decision can be read as a warning to the legislator to signal a space that is necessarily empty and needs to be filled in. However, even if the decision cannot be classified as a warning, since it does not contain any of the classic formulas of dialogue between the Court and the Parliament, the constitutional judges did not fail to emphasize the constitutional importance of the request made by the parties. In this sense, the Court gave prominence to the experiences of non-binary people with an obiter dictum that will form the basis for future rulings on this issue. The Court recognized that an individual’s perception of not belonging to either the female or the male sex – which generates the need to be recognized in a different identity – creates a significant situation of discomfort in relation to the personalist principle recognized by the constitutional system. To this end, and in order to pave the way for the increasingly necessary overcoming of binarism in normative terms, the Court wisely referred to practices such as “alias careers”, which already allow for the full development of an individual’s identity experience in important areas of social life, such as secondary and university educational institutions.
In summary, the comments lead us to conclude that the ruling on the unconstitutionality of the authorization regime for sex reassignment surgery serves the purpose of eliminating an internal contradiction in the legal system based on the principle of reasonableness-coherence. It also brings Italian law closer to legal norms that increasingly tend to recognize the centrality of self-determination in matters of gender transition. On the other hand, with regard to the reasoning on the inadmissibility of the question on the “third gender”, it is evident that the Court, while not issuing a warning to the legislator, is preparing the ground, in terms of constitutional coverage of the issue, for a possible evolution of the legal system towards non-binary terms.
*PhD Candidate, University of Trento
