Towards Law 164/1982

If transsexuality began to gain public visibility in Italy in the 1950s and 1960s, sex change in Italy was illegal until the approval of the Law 164 in 1982. Transvestitism was governed by the Criminal Code as illicit concealment (Art. 85). Alternatively, trans people were considered ‘habitual offenders’ (Art. 1) and, if judged ‘potentially dangerous to public safety or the national order’ (1931 Fascist Public Safety Laws, Royal Decree no. 733), the law could be enforced to the extent of confinement or special surveillance. Subsequently, pursuant to Law 1423/1956 (Preventive Measures against Those Threatening Security and Public Morals), transsexuals were likely to be subjected to warnings, preventive measures, confinement, and the confiscation of their identity documents and driving licences (Benadusi Reference Benadusi2008; Cecconi Reference Cecconi1976; Marcasciano Reference Marcasciano2002). However, by the end of the 1960s and early 1970s, Italy (like several other Western countries)Footnote ⁶ witnessed the increasing process of making transsexuality a public and political issue. In 1967, Romina Cecconi (popularly known as ‘La Romanina’) was the first trans woman to publicly announce her gender reassignment surgery (undergone in Geneva, Switzerland). For this reason, she was considered by the state a morally and socially dangerous person, and was sentenced to confinement in a small town in Southern Italy. She was eventually recognised as a woman by the Court of Lucca in 1972 (Cecconi Reference Cecconi1976). In that year, members of several European homosexual associations gathered publicly for the first time, in San Remo, in order to disrupt the International Congress on Sexual Deviancy organised by the Italian Centre for Sexology, which supported conversion therapy for homosexuals. Amongst the protesting associations was the newly formed group known as FUORI!, an acronym for Fronte Unitario Omosessuale Rivoluzionario Italiano (Italian Revolutionary Homosexual United Front), which, as we will see, became an important ally in the battle for transgender people’s rights (Barilli Reference Barilli1999; Prearo Reference Prearo2015). One of the leading figures in the group, until 1974, was Mario Mieli, gay activist, intellectual and author of one of the milestones of the Italian LGBTQ political culture, Elementi di critica omosessuale (Reference Mieli1977).

Two events in particular are related to the struggle for a gender recognition law, and to the official birth of the Italian transsexual movement (MIT). In the summer of 1979 the Constitutional Court was called on to assess the legitimacy of three articles of the Italian Civil Code (no. 454 of the Royal Legislative Decree 12 December 1938; nos. 165 and 167 of the Royal Legislative Decree, 9 July 1939; No. 1238). They dictated that vital records could be rectified in cases of omission, destruction or loss, and provided rectification if the civil registrar official who drafted the personal information had made a material error in identifying the person’s sex. Until then, trans people had used these articles as a way of (illicitly) modifying their registered sex by falsely claiming erroneous registration or transcription of sex at birth.Footnote ⁷ The court ruledFootnote ⁸ that the aforementioned articles did not include, ‘among fundamental human rights, the right to register an external sex other than the [individual’s] original sex, acquired through surgical transformation to make this sex correspond to an original psychic personality.’Footnote ⁹ In acknowledging that there was a gap in the Italian legislation on this topic, on the occasion of this ruling the court explicitly addressed the Italian parliament, inviting it to resolve this issue. However, to all intents and purposes, in the short term the ruling of the Constitutional Court constituted an insurmountable obstacle for trans people, and their scant possibilities for adapting their personal data to match their physical appearance and gender identity.

Nevertheless, the verdict triggered the emergence of trans experience on the public stage. Thus, in reaction to the court decision, in July 1979 several trans women organised a protest in a public swimming pool in Milan (Marcasciano Reference Marcasciano2006, 42).Footnote ¹⁰ They wanted to show to the public, to the institutions and, above all, to the state, the contradictions of their condition (having a female body but male identity documents), and to demand full social and legal recognition of their belonging to the female gender. This initiative granted for the first time public visibility to the ‘transsexual issue’, and fostered the creation of trans women’s groups and protests in many Italian cities, which aimed at securing a law that would allow them to change their personal data on their identity documents. The first outcome of these demonstrations was the creation of MIT, officially in 1979 (Voli Reference Voli2016). From the outset, the group sought dialogue with political actors, especially in the institutions; these included the Radical Party, which went on to become the movement’s spokesperson in parliament, the Italian Communist Party (hereafter PCI), the Left more generally – both inside and outside parliament – and, above all, FUORI!. Born at the beginning of the 1970s, and part of the Radical Party from 1974, FUORI! became the main ally of MIT. Immediately after the ruling of the Constitutional Court, it drafted the first bill for gender recognition, which the Radical Party submitted to parliament on 27 February 1980.Footnote ¹¹

Yet, the original objectives of the draft legislative act proposed by the Radical Party (law proposal no. 1442/1980), appear to have been quite different and more limited than they eventually became during the discussion in parliament. The so-called ‘De Cataldo Law’, in fact, was solely aimed at simplifying procedures for changing sex in vital records (but not through surgery), which had been outlawed by the 1979 Constitutional Court ruling. The draft proposed that the rectification of personal data could be generically made ‘in all cases in which the current situation no longer appears to conform to the one established at the time of birth’ (rather than only in cases of error, omission, destruction or loss), as the Radical De Cataldo himself declared, introducing the bill in the Chamber of Deputies on 27 February 1980.Footnote ¹² Such wide-ranging formulation intentionally omitted any specific reference to trans experience: the Radical Party hoped that this would have easily and quickly allowed the passing of the law, avoiding conflicts with the Christian Democracy (hereafter DC). In fact, the Radicals were persuaded that any confrontation with the DC would have occurred on the slippery grounds of morality,Footnote ¹³ making it difficult to reach a rapid vote on, and adoption of, the proposal. Indeed, they were aware that the transsexual phenomenon could be seen as a threat to the traditional gender system, of which DC was the chief upholder in parliament.

The Radicals’ urgency to obtain the approval of the law characterised the entire parliamentary debate, and it deeply affected the arguments concerning transsexuality and, consequently, the wording of the law. Emblematically, when in February 1980 De Cataldo first presented the bill no. 1442, he did not mention the principle of self-determination, but referred to trans experience in terms of a ‘dramatic condition’ and the ‘result of a mistake of nature’, basically reducing it to the medical and psychological sphere. Indeed, he unhesitatingly stated that he did not intend to discuss ‘the nature of transsexuality’, which in his opinion had already been exhaustively covered by medical experts.Footnote ¹⁴ In particular, he mentioned Harry Benjamin and Aldo Franchini – two well-known figures at the international and national level respectively; at the beginning of the 1960s the American endocrinologist Harry Benjamin had brought the term ‘transsexual’ into common usage,Footnote ¹⁵ and the diagnostic criteria he devised have constituted (and still constitute) a fundamental reference for the international scientific community. Aldo Franchini, an expert on forensic medicine, criminologist and child psychopathology specialist, authored the article entitled ‘Schizosessualità e cambiamenti di sesso’ (1967), which De Cataldo explicitly cited in his intervention in parliament. Without being directly referenced, its discursive framework more broadly nevertheless underlay most of the parliamentary debate across the political spectrum, granting significant space to the pathologising approach.

When on 1 October 1980 the Chamber of Deputies opened the discussion of the De Cataldo bill, all the main political parties proposed amendments. The Communists were the first to present their position, calling for a ‘more scientifically accurate formulation’ of the problem. In particular, they proposed that the text of art. 454 should also specify the possibility of rectifying personal data in cases in which an ‘effective, original or subsequent sexuality has been ascertained that differs from that reported at birth’.Footnote ¹⁶ After the PCI, the Gruppo misto-sinistra indipendente (Mixed Group – Independent Left) invited deputies to consider what effects changes on registered sex would have on existing marriages – implicitly hinting at the risk that they would be turned into same-sex unions.Footnote ¹⁷ Next, it suggested that judges should carry out ‘inquiries, including health examinations, to determine the sex of the person’,Footnote ¹⁸ thereby introducing for the first time in the debate the requirement of a medical intervention to ascertain the ‘true’ sex of a person.

Fearing that these amendments might bog down the discussion, the parties which had proposed them withdrew them on the very same day. The DC, however, requested additional time to better consider the implications of the bill, which resulted in a postponement. In the next day’s session, Catholic MPs made lengthy speeches revolving around the elaboration of a definition of the transsexual condition, and the legal, social and cultural repercussions potentially ensuing from the Radical Party’s bill. Two elements seemed to be DC’s biggest worries. One was the difficulty to scientifically track down the origins of transsexualism and, accordingly, the most appropriate ‘cure’ for what they considered a pathology. The other was the fear that such a law would represent a Trojan horse in the Italian legal system, which would have legitimised sex change.Footnote ¹⁹

Within the overall political confrontation taking place within the Chamber of Deputies, only two MPs, the radical Adele Faccio and Aldo Rizzo from the Mixed Group – Independent Left, expressed a non-pathologic approach to the trans experience, supporting instead trans people’s right to self-determination. Although their position remained a minority, and notwithstanding the DC’s doubts, at the end of the second day of debate De Cataldo’s bill was approved, with 19 favourable votes out of a total of 24 voters. Supporters included Radical, Communist and Socialist MPs, and a representative of the radical right-wing party Movimento Sociale Italiano (Italian Social Movement, MSI). Members of the Partito Socialdemocratico Italiano (Italian Social Democratic Party), Partito Liberale (Liberal Party) and the Partito Repubblicano (Republican Party) were absent, while several Christian Democrats voted against it. However, DC MPs considered that the bill was too vague, eventually leading the government to draft a new law, more specifically focused on the issue of changing trans people’s name and gender marker on identity documents.

This time, however, the DC senators took over the discussion in parliament. On 5 November of the same year, they presented another bill in Senate:Footnote ²⁰ bill no. 1591 entitled Norme in materia di riconoscimento di mutamento di sesso (Rules Concerning the Rectification of Sex-Attribution). In introducing the bill, the Catholic senator Rosi explicitly chose a narrative register that framed his interpretations, terminology and reasons within the medical and legal sphere:

With this proposal, senator Rosi and his party aimed to define a medico-legal procedure to discipline the gender change, ‘in order to manage adjustments to vital records to reflect the sexual reality of individuals and regulate cases in which sex change might be allowed and ways to ascertain it’. On the clinical side, the bill required medical-legal consultation that would assure the ‘new’ gender identity and its irreversibility (through hormonal and surgical treatments which cause sterilisation and, consequently, the deprivation of trans people’s right to reproduction). On the legal side, the requirement that the process leading to gender change ought to involve the public prosecutor, framed verification and attribution of gender identity as a matter of public order. The obligation to annul pre-existing marriages, moreover, prevented the legalisation of same-sex unions resulting from a spouse’s sex change, thereby reaffirming the heterosexual marriage as the only bond legally authorised to reproduce ‘the human species’. In other words, Rosi’s speech encapsulated some of the main points that were later integrated into the final text of the bill, and which reflect some of its problematic constraints to trans people’s rights.

Rosi’s bill rapidly made its way to the Senate’s Justice Commission, which jointly examined the two texts (no. 1442 and no. 1591), sending the new unified law to the Deputies’ Justice Commission for final approval in February 1982. Finally, on 1 April, the parliament unanimously approved Law No. 164/1982, which definitively regulated changes in name and sex attribution in a person’s identity documents. Although commonly known as the ‘De Cataldo Law’, of the seven articles that compose the law only the first matches the original bill presented by the Radical Party’s senator.Footnote ²³

For MIT and the Radical Party, the ‘De Cataldo Law’ immediately came to represent a symbolic political victory, and is still considered as ‘an historic turning point in the history of our country’s law and moral framework’ (Arietti et al., Reference Arietti, Ballarin, Cuccio and Marcasciano2010, 23). However, it did not provide concrete solutions to the problems affecting transsexual people: the text of the law reflected the contradictions embedded in the synthesis of the two bills resulting from the parliamentary debate, above all between the DC and the Radicals, whose initial aim was simply the legal change of gender on documents, rather than a medico-legal regulation of it. At the same time, it also revealed from the very outset many problems that trans people came to face from then on. MIT activists’ demand for self-determination in gender identity was in fact substantially and institutionally hijacked. The law, in fact, established trans people’s enforced medicalisation through the institutionalisation of the medical-legal consultation necessary to begin the process of gender transition. Moreover, they were subjected to public order through the institutionalisation of the court procedure with the pubblico ministero (state’s attorney, PM).Footnote ²⁴ The law, hence, failed to promote freedom of choice and self-determination for trans people: rather, it delivered them into the hands of the arbitrary system of regulations associated with the clinical and legal sphere now tasked with regulating and managing their lives.

In conclusion, throughout the parliamentary debate the principle that the right to change one’s sex might derive from a principle of self-determination was repeatedly denied.Footnote ²⁵ Instead, it was replaced by a reiteration of the pathological nature of the trans condition. This outcome is the direct consequence of the distress experienced by parliamentarians–especially Christian Democrats – in the face of a lack of definitive scientific interpretations establishing the ‘true’ causes of transsexuality. In the text of the law this uncertainty is expressed in the demand for procedures to establish the irreversibility (‘definitive adjustment’) of the transsexual condition, which would erase any (at least) aesthetic ambiguity or trace of – using senator Rosi’s words – ‘deviation from the sexual norm’,Footnote ²⁶ as the basis on which to approve or reject a person’s name change in the state’s vital records.Footnote ²⁷ What remained untouched, however, was the forcefulness of the heterosexual binary model, which deeply characterised Italy’s sex change law and conditioned people’s ways of and possibilities for experiencing gender transition. It was only in July 2015 that the Court of Cassation ruled out the legal obligation to undergo surgery as a prerequisite for vital records rectification.Footnote ²⁸

The controversial relationship between trans bodies and citizenship

As I have shown so far, in the Italian context trans individuals are granted the freedom to change their own bodies and name conforming to their inner gender by means of Law 164/1982. In reality, though, this apparent freedom operates alongside the pathologisation of the subject, which to all intents and purposes serves to deny them this very freedom. As emerged from the trajectory leading to the approval of Law 164/1982, for people whose bodies do not conform to the gender binarism, citizenship is the result of their acceptance of being diagnosed a pathology,Footnote ²⁹ and of the ensuing medico-legal procedures set to guarantee the transition toward a definite and indisputable (masculine or feminine) gender identity.Footnote ³⁰

If citizenship is a process historically premised on the basis of an exchange of rights and duties between institutions and individuals, pathologisation is what structures the ‘duty’ of gender non-conforming subjects to comply with the gender binary system, by delegating decision-making power over their bodies to medico-legal institutions. Accepting pathologisation thus becomes the only means to acquire the status of citizen, exclusively reserved for trans subjects who agree to become ‘recognisable’ and ‘normed’, thereby showing themselves ‘deserving’ of citizenship. Nevertheless, it is precisely pathologisation that reveals the contradictions which affect trans citizenship in contemporary Italy.

The first of these contradictions is related to the disconnection between the wealth of sociological studies focused on citizenship,Footnote ³¹ and those on the body (Shilling Reference Shilling2012; Turner Reference Turner2008, Reference Turner2012), despite the fact that it is precisely the body which grants substance to the subjects of citizenship. Ultimately, this process results in a lack of attention to the role bodies play in the process of defining citizenship. Research envisaging the convergence between bodies and citizenship in relation to trans people’s experiences is even rarer. As Bacchi and Beasley (Reference Bacchi and Beasley2002, 324–325) pointed out:

If we analyse the Italian context from the point of view of the relationship between pathology and citizenship, however, there is the possibility of de-structuring it. In particular, the acquisition of citizenship corresponds to different degrees of autonomy in subjects’ ability to act on their own bodies. Furthermore, this relationship reflects the dichotomy of ‘“control over body” versus “controlled by body”’ (ibid.). Pathologisation turns trans people into patients, as they are subjected to a process of ‘expropriation of the Self’ enacted by medical figures, likewise ‘infantilised’ in order to make them more manageable as gendered subjects (Indino Reference Indino2014, 27). In other words, this apparent freedom coexists with the idea that self-determination can derive from its own antithesis, which is the unavoidability of the medical diagnosis. Hence, underlying the ‘pact’ on the basis of which medical and legal powers have allowed trans bodies to re-enter the population of citizens as bodies restored to the norm, and thus reconstructed as conforming and productive, is its very unfeasibility. Moreover, the standardised set of procedures for sex reassignment, which in Italy usually follow the diagnosis of gender dysphoria, is mainly based on an international manual which defines that ‘[b]eing transsexual, transgender, or gender nonconforming is a matter of diversity, not pathology’ (WPATH 2011, 168). In light of these points, I argue that the only way that citizenship might operate without excluding gender non-conforming people is by valorising the wealth of heterogeneity embodied by trans lives. Only by doing so might a transgender citizenship exist ‘both as a way of expanding our understanding of citizenship, and as a means of informing the political debates’ (Monro and Warren Reference Monro and Warren2004, 359).

As recent judicial rulings clearly illustrate, achieving this result is far from simple. In January 2015, some of Italy’s most important LGBTQI associations filed a request that the obligation for trans people to undergo sterilisation procedures in order to change their identity documents be declared unconstitutional.Footnote ³² In November 2015 the Constitutional Court accepted this request with ruling no. 221/2015, which granted the possibility of changing a person’s sex on identity documents without the obligation to submit to surgical sterilisation and genital mutilation. Declaring that they wished to position individual rights at the centre of the process, the Constitutional Court judges in fact ruled that surgery constitutes only one of the ‘possible techniques for carrying out sexual modification’, and that the person in transition should be free to decide. Yet, this gender transition does not rely on subjects’ self-definition, but rather continues to be constrained within precise clinical and legal procedures. According to the Court, in fact:

This last sentence clearly illustrates the dual register (freedom of choice/medical assistance) that reinforces specific limits on trans people’s self-determination, which similarly characterises the ruling no. 15138/2015 of the Court of Cassation.Footnote ³³ The aforementioned rulings recognise that the decision to undergo surgical modification is the result of a ‘process of self-determination towards the goal of sex change’, and interpret these surgeries as ‘one of the many possible pathways for ensuring that the person’s external appearance matches their personal identity, as perceived by the subject’. Yet there is no attempt whatsoever to question the pathologisation of trans people. Illustrative of this is the requirement to obtain judicial recognition of the rectification of vital records according to which a judge is required to declare – according to the timing of case-law, and not the individual’s process – that the person in question has in fact completed a transition to the opposite sex (thus also confirming the foundational gender binary system underlying the construction of citizenship). Additionally, by confirming the existence of a pathology, this ruling essentially validates the standardised procedures for gender reassignment as their ‘cure’, which ought to ensure that the individual develops ‘secondary’ sexual characteristics (such as breast, voice pitch, facial hair) and hormone levels comparable to those that non-trans men and women tend to present.

The rulings confirm that the price to be paid as a prerequisite for social acceptance and legal inclusion is that the trans condition be rendered invisible, reabsorbed, or normalised within the binary gender system, reconfirming – in Paul Preciado’s words – that ‘there is no recognition without standardisation’ (2015). These judgements undoubtedly represent an important legal shift in relation to trans people’s experiences, and have the effect of eliminating systems of social exclusion for people undergoing gender transition. At the same time, however, the persistence of a pathological lens and the procedures accompanying this interpretive framework ensure that individuals who ‘transgress’ remain on the margins of citizenship, i.e. in the condition of ‘non-citizens’. In order to reformulate citizenship, which has traditionally excluded and marginalised gender non-conforming experiences, articulating a causal relationship with the condition of pathologisation, it is important to stress that the possibility of a trans citizenship must necessarily revolve around the fundamental requirement of bodily self-determination, free from the pathologising lens and the medical-legal apparatus.