The EU Charter of Fundamental Rights as a formal tool to prevent discrimination based on sexual orientation: the case of Italy

Deborah Conserva, EST Ambassador to Belgium 

Introduction

In 2000, the Parliament, the Council and the Commission declared in  Article 21 of the EU Charter of Fundamental Rights (CFR) that “any discrimination based on sexual orientation shall be prohibited” in the countries of the Union (European Commission, 2002).

Following the adoption of the EU Charter, the European Union created legislation fighting discrimination related to sexual orientation solely with regard to employment (European Commission, 2002). The legal protection ensuring an equal treatment in the matter of employment is the Employment Equality Directive, adopted unanimously by Member States in 2000 (European Commission, 2002).

This Directive has been transposed into national law by all the Member States  (European Commission, 2002). Legal protections in eighteen EU Member States have extended even further than the  field of employment to include all or some of the areas specified in the Racial Equality Directive (European Union Agency for Fundamental Rights, 2022).

Despite the legislation created in the last years and the recent declaration of the European Parliament to make the EU a LGBTIQ+ Freedom zone (European Parliament, 2022), the situation concerning the discrimination towards the LGBTIQ+ community in the countries of the EU is far from being positive. 

The article will present the Italian situation concerning the above-mentioned topic. This will be operated by delving into the last legislative proposal made in the matter of sexual orientation and its subsequent blockage by the Italian Senate, which has once again left Italy without a legislation on the subject. The Italian case shows that, even though legal protections against sexual orientation based discriminations exist within the EU Charter, and have been adopted by Italy, in practice, Italian legislation provides little protection for the LGBTIQ+ community.

Sexual orientation based discrimination: the case of Italy

As stated by the newspaper Independent, Italy “lags behind other European countries in enacting measures against homotransphobia” (Pase, 2020).

Despite Italy’s bond to the above-mentioned Charter and the transposition of the Employment Equality Directive, the discriminations towards the LGBTIQ+ community in the country are common currency. As a matter of fact, Italy is in 35^th place in a ranking assessing the impact of the policies adopted in 49 European countries on the LGBTIQ+ community, realized by ILGA Europe in 2021 (ILGA Europe, 2021).

Concerning the perceptions of Italians towards the matter, a survey conducted among young Italians on 2020 and published by Varrella S. shows that 96% of respondents aged 13 to 23 years believe that “people  in Italy suffer from discrimination based on sexual orientation” (Varrella, 2021). 

In 2020, 71 hate crimes related to sexual orientation were reported to the Italian police. Hate crimes in Italy involved: disturbance of the peace, robbery, damage to property, vandalism, threatening behavior, homicide, incitement to violence and physical assaults (Varrella, 2021). Between the different types of reported crimes, incitement to violence and physical assaults were the most common, constituting 47 out of 71 hate crimes (Varrella, 2021).

The Italian legislative framework

The backwardness of the country related to the matter explains itself by the lack of a legislative framework with regard to prevention and fight against discrimination for reasons of sexual orientation and gender identity.   

A first attempt to fill this legislative gap traces back to 25 years ago, when the ex-politician Nichi Vendola proposed a law against homophobia (Casadio, 2021). This proposal aimed to introduce sexual education in the teaching activity of secondary schools (Camera dei deputati, 1996). It goes without saying that the legislative proposal failed to pass.

The draft proposal “DDL Zan” and its trajectory

In 2018, a new draft law was initiated by the senator Alessandro Zan, the draft law Zan (“DDL Zan”) (Camera dei deputati, 2018). This legislative proposal, if accepted by the Parliament, would have integrated the articles 604-bis and 604-ter of the penal Italian code, establishing a specific protection in case of violence for reasons related to sex, gender identity, sexual orientation and disability (Camera dei deputati, 2018). 

Beside the penal aspect of the legislative proposal, the draft law encompassed a range of non-penal measures aiming to raise public awareness and promote respect and inclusion in the matter of sexuality (Camera dei deputati, 2018). In order to do so, it would have established a National Day against homophobia and formulate a national strategy for the prevention and the contrast of discriminations based on sexual orientation and gender identity (Camera dei deputati, 2018).

The bill has initially been submitted to the Chamber of Deputies, the lower house of the Italian Parliament, where it has been approved on the 4^th November of 2020. Its approval has raised numerous objections by the opposition parties, the anti-abortion movements, the integralist Catholics as well as the Catholic Church. Indeed, last summer, the Vatican sent a diplomatic note to the Italian government to ask for a change of the draft law (Pinto, 2021).   According to the Church, the draft bill violated the Italian Concordat, the official document regulating the relations between the Italian State and the Catholic Church, specifically regarding the Church’s freedom of expression (Pinto, 2021). Put in other words, the Vatican feared that the openly homophobic stances of some members of the Church could have been prosecuted, if expressed publicly (Pinto, 2021). Moreover, it claimed that the doctrine put forward in the draft bill went against the plan of God (Pinto, 2021).

The note sent by the Vatican has marked the first time in the history of the diplomatic relations whereby the Vatican intervened in the legislative process of an Italian law (Viafora, 2021). This episode, in spite of polarizing the Italian public opinion initially, has been solved

by Mario Draghi’s intervention, stating that Italy is a secular state, thus the Parliament is free to deliberate and legislate (Medichini, 2021). 

After the Chamber of Deputies’ approval, the draft bill was finally submitted and subsequently rejected by the Senate of the Republic on the 29^th October 2021. (La Repubblica, 2021).  This has been done through a rarely used parliamentary procedure known in the journalistic world as “tagliola” (Lami, 2021). Tagliola refers to the aim of blocking the draft bill, even before the passage to examination of the articles, by the Senate (Lami, 2021). This has been operated through the secret votes of the Senators (Lami, 2021), which can be considered a decisive factor in the blockade of the draft.  

The trajectory of the draft bill and its subsequent suppression marks a major event in Italian political life. As a matter of fact, the DDL Zan symbolizes both for the LGBTIQ+ community and the progressive Italian citizens a chance for creating a more inclusive country, in the field of civil rights. In fact, it should be noticed and, it has not been clarified yet in the article, that the DDL Zan aimed not only to prevent discrimination based on gender and sexual orientation, but also sex and disability. This aspect shows even more the gravity of not even analyzing the articles contained in the draft bill presented by Senator Zan.

Besides the disappointment of a part of the population, what is relevant is that Italy is once again deprived of devices of protection for the LGBTIQ+ community. 

The Italian case concerning the rights of the LGBTIQ+ community is alarming, as the ranking realized by ILGA Europe demonstrates. 

Conclusion

The copious number of discriminations suffered by the members of the LGBTIQ+ community is exemplary in showing that the value of the EU Charter of Fundamental Rights is purely formal. Moreover, it points out that the EU has not undertaken effective measures to prevent discrimination based on sexual orientation. As a matter of fact, creating legislation only on the field of employment is insufficient to protect the LGBTIQ+ community in the Member States.

Ultimately, the article raises the problem of the gap between formal equality and substantive equality. Even though it is stated in the EU Charter of Fundamental Rights that discrimination based on sexual orientation should be prohibited in the Member States, the lack of legislation in some EU States makes difficult the application of the principles declared in the above-mentioned Charter. The case of Italy as well as recent political developments in countries like Poland and Hungary show well the European’s lack of concrete perspective in implementing equality on substantial grounds.

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