“There‘s insufficient legal protection for children of rainbow families”

The LGBTQ+ community is experiencing a difficult time in Italy with the Meloni government not only creating a climate of rhetorical marginalization, but also concretely reducing rights. Can you give us a brief overview of the legal situation?

Alexander Schuster: I would say that at the legal level the situation has never really been positive. Perhaps between 2014 and 2016, with the introduction, among other things, of civil unions, which may or may not be liked, there was an upsurge in protection but from a legal point of view but full protection was only really given to couples. However, there were times when we were in the vanguard: we were the third country in the world to recognize the identity of trans people, that was in the last century, forty years ago. However, we have stood still from that point while the world around us has moved on. In Italy, trans people still have to go through a long, complex and expensive judicial procedure to be recognized legally; this no longer makes sense. Just as it no longer makes sense that they need a court ruling to undergo medical interventions on their bodies. Forty years ago this was important because surgeons were afraid of touching ‘healthy’ bodies and therefore demanded protection. Today, surgeons no longer see this as a problem. However, trans people cannot go directly to a doctor for medical treatment like all other people, but must first consult a lawyer and go to court. The question of whether this is unconstitutional was referred to the Constitutional Court by the court in Bolzano in January. This was following the case of a young trans person from South Tyrol whom I represent. We really hope that something will change.

**And what about marriage and family?

Schuster: Italy, a country where same-sex couples cannot marry, is today the only exception in Western Europe along with San Marino, Monaco and the Vatican City. Although marriage is more of a symbolic label in family law, not granting it to everyone is equal to discrimination.
As far as families are concerned, the big problem is the lack of protection for children born into rainbow families, a problem that stems from the uncertainty of recognition.

Many families are experiencing this uncertainty in a drastic way: the Ministry of the Interior has stopped the established practice of mayors being able to register same-sex couples as parents on birth certificates, and the registration of the non-biological parent can even be cancelled.

Schuster: The problem is that in Italy there is no law that allows both parents to be recognized if the birth the birth of a child comes from same-sex unions. In Western Europe, except in Germany, where the situation is still similar to Italy, this is now regulated by law everywhere: for example, if a lesbian couple has a child, it must be adopted by the non-biological mother. In Germany, however, the process is much simpler and, above all, there are plans to put an end to this unequal treatment; there is already a draft law.
In Italy, on the other hand, there is no prospect at the legal level. The fundamental problem is the political climate, which is not favourable to minorities.

What is the role of the European Union? Can it influence the member states on these issues?

Schuster: The European Union has very limited competence in family matters. But what can influence is the fact that people travel and live in other countries, especially LGBTQ people. People from South Tyrol, for example, experience a completely different climate in Austria, in Germany, in Switzerland. There they are recognized as intersex, non-binary, they can get married, they are recognized as parents at birth. Then they return to Italy and their world collapses. The European Union must also ensure that its citizens do not have to change their passports within the Union. The Court of Justice is currently considering the case of a trans person who was registered as female at birth in Romania, but later underwent gender reassignment in the UK and received official recognition of her male gender identity there,and which her country of origin now does not recognize. So a person is a man in one country and becomes a woman when they cross the border. We will see what the Court decides, even if it is not possible to change sex when moving from one country to another. So these are interesting issues that show us how the law has developed very quickly in other countries but not here over the last forty years. In this sense, the EU may have a limited role, but it is a role nonetheless, it forces us to dialogue. The EU forces us to confront what happens beyond our borders.

In Italy, it is often the courts that ask legislators to act when it comes to civil rights. For example, the Constitutional Court has declared it “constitutionally illegitimate” for children to be automatically assigned their father’s surname at birth. Are the courts more progressive than politicians?

Schuster: The courts always play an important role in the protection of minorities. In our western culture, the task of the law is to defend minorities, not to further strengthen the majority. In Italy, however, we unfortunately have a situation where Parliament is unable or unwilling to pass adequate laws; the issue of surnames concerns the ‘marvellous married and heterosexual couples’, and even on this, Parliament is unable to shed light. Evidently it is afraid to touch issues that concern the family and the individual, at least when it comes to greater openness and equal treatment. So citizens are forced to take their questions to court and judges answer them. But they may get tired of always playing the role of parliament; the courts are loaded with a burden that is not theirs to bear. Democracy needs the corrective role of the courts, but its development and rules should be determined by Parliament, by the people‘s elected representatives. So in Italy we have a system where Plan B, what should be the safety net, actually becomes the main way to enforce rights. It is not a healthy system.

**What issues do people turn to you as a lawyer for?

Schuster: As far as the rights of trans people are concerned, recognition as a non-binary person has come to the fore in recent years; in my opinion a very important issue that puts the person back at the center of the law. Here too the court in Bolzano has asked the Constitutional Court for an opinion: shouldn’t non-binary people be able to choose a third option instead of female or male as gender?
Another problem is discrimination; these cases are very difficult because judges are not trained to recognize discrimination because they expect black and white evidence, but of course it does not work that way. It doesn’t ever say in a real estate ad that someone won’t rent to homosexuals or transsexuals. The discourse is much more subtle. If a Catholic school no longer wants a gay teacher, it does not say that it fired him because he is gay, but invents a thousand reasons. Judges are rarely able to deal with these situations, precisely because they deal with them too infrequently. It’s a dog biting its own tail: there are so few cases that judges are not trained to deal with them, so they often don’t even get taken to court because of the risk of risk losing...

You work in Trentino and also in South Tyrol: are these rural and peripheral regions as conservative as they say?

Schuster: It may be true for Trentino; in my opinion, South Tyrol has the great advantage of being in cultural contact with German-speaking countries which, however different, are all light years ahead of Italy on these issues. In Austria, as in Germany, non-binary people have a third option when they register in the civil status register, lesbian couples have access to assisted fertilization... And even if South Tyrolean society may be conservative, fortunately it understands what is happening outside and doesn’t only look to Rome for guidance. Trentino does not have this closeness to a context that respects minorities and fundamental rights, so it is a more difficult environment. But here, as there, you can have all kinds of experiences. Starting from the beautiful and simple statement ‘non-binary people exist’, the judges in Bolzano have put important questions to the Constitutional Court; on the other hand, the Public Prosecutor’s Office in Bolzano has declared that calling an LGBTQ organisation ‘paedophiles, exhibitionists and groomers’ falls within the right to criticism and therefore goes unpunished.