The Scalfarotto Law and LGBT Rights in Italy
An Italian woman's Facebook account was suspended in May 2014 after she posted this pro-LGBT photo.

A major stumbling block to anti-discrimination laws is the right to freedom of speech and expression. In most Western democracies a ban on words is likely to revive the specter of dictatorship, in the style of Orwell' s Big Brother. So valuable is the right to freedom of expression, that the inability to speak up on our ideas, feelings and opinions would strike most of us not only as wrong, but also as deeply reductive, even suffocating. Yet, can it be that freedom of expression sometimes serves as an excuse? Can it help appease powerful majority groups, while effectively denying minorities their share of the pie? These questions are extremely relevant in the context of Italy's anti-homophobia/transphobia bill. The latter, a legal hot potato in the Italian context, was passed in late 2013 brewing widespread discontent among LGBT and Catholic communities alike.

The Scalfarotto law and the Catholic front

The Mancino-Reale law, Italy's anti-discrimination law, was introduced in the 1970s to ban racial discrimination and extended in the 1990s to protect religious affiliation. In 2008, 2009 and 2011 proposals to include LGBT discrimination were discussed in Parliament and turned down.

In 2013, following several episodes of violence against LGBT people, at the initiative of Ivan Scalfarotto, member of the Democratic Party, a third round of (grinding) debates on the bill was launched. The 'no' camp, that had eloquently voiced its dissent over the years, resumed its attack on the legislative proposal. Three primary criticisms were brought to the fore. Firstly, it was pointed out that an anti-homophobia/transphobia bill would discriminate among victims of violence. Art. 61 of the Italian Penal Code recognizes 'abject and/or futile motives' as aggravating circumstances; thus an enhanced punishment for crimes triggered by homophobic/transphobic beliefs was considered dysfunctional, and even unconstitutional. In fact, it would effectively entail unjustified favouritism among victims of violence, in breach of the principle of equality before the law, enshrined in art. 3 of the Italian constitution. On what grounds should LGBT victims be privileged over other victims?

The second major criticism concerns the wording of the law, which was regarded as vague and lacking the 'definiteness' requirement of art. 25 of the Italian Penal Code.  Not only was there no clear-cut definition of terms such as homosexuality, transsexuality, sexual orientation and gender identity, but the latters also appeared as only subjectively measurable and based on individual, potentially changeable sexual preferences. If a victim brought to court an offender asserting that they had suffered from homophobic/transphobic discrimination, how could the judge assess the claimant's sexual orientation and consequently, the veracity of the accusation? Moreover, how could they assess whether homophobia and transphobia were in fact the primary motives driving the culprit? Not only would judges be burdened with a great deal of guesswork, but also, in the light of its ambiguity, the law would likely prove inaccurate, ineffective and ultimately even unfair.

Finally, many opponents of the amendment argued it would significantly weaken freedom of expression. Civic Choice party members in particular, expressed the fear that its introduction would lead to undesired consequences: a person who vocally rejects marriage between gays or adoption by homosexuals, could be charged for criminal offence. Even worse, so would a mother who attempts to dissuade her daughter from marrying a bisexual, or a father who decides not to rent a property he owns to his son, who wants to move in with his male partner. Many Catholics, including those belonging to the well-known Association 'Jurists for Life', claimed that the approval of such an amendment would prevent believers from openly advocating and teaching the so-called natural law. The latter does not openly indict homosexuality; however, it defends heterosexuality and marriage between men and women as natural and right. Rather than promoting more equality, amending the existing anti-discrimination law to include gender-based hatred, the proposed law would effectively lead to severe limitations in freedom of speech, opinion and expression.

This last strand of criticism was the subject of what looked like an endless debate between the advocates of the bill and its detractors. The possibilities of a compromise seemed dim. That is until September 2013, when the final version of the bill was approved, including a key amendment. Amendment Gitti, named after its initiator Gregorio Gitti of Civic Choice, states that the expression of opinions in the context of political, cultural, religious, educational organizations, so long as they do not incite to violence, does not constitute discrimination.


Gay rights activists at the annual gay parade in Rome in June 2013 

Shifting the focus : from the needs of a minority to the interests of the majority

With the approval of the Scalfarotto law, all hell broke loose. The gay community was flabbergasted. How could the government condone legislation that punishes individual discrimination, but glosses over discrimination at the hand of organisations?  The Italian government had effectively approved a law that in its very own formulation allows for loopholes and exemptions.

However, critics of the anti-homophobia/transphobia bill also seemed to have a good point. In the final version of the bill, some offences are no longer punishable by law, such as 'propaganda' activities promoting homophobic and transphobic ideas and the 'instigation to violence against homosexuals and transexuals', while others such as the 'diffusion of homophobic/transphobic ideas' and 'the incitement to violence' are . While these changes may broaden the scope of the law, by targeting both direct and indirect discrimination, they also render any judgment or assessment highly discretional. It does not take a big stretch of the imagination to see how the simple objection to gay marriage may lead to legal prosecution.

Is this a dead-end debate? If we look a bit harder, we might realise matters are a little less thorny than we may think. Italy's anti-homophobia/transphobia bill has managed to shift the focus (if there ever was any focus) from the needs of a minority to the interests of the majority. While the bill was initially intended to protect a disadvantaged social group, in the name of freedom of speech it has been twisted to suit the likes of the powerful. The law has ended up being much more cosmetic, than groundbreaking.

Perhaps this is the risk of all anti-discrimination laws. Many have argued that while they are motivated by noble intentions, they not only jeopardize freedom of speech and fruitful societal debate, but also prove inadequate: what disadvantaged social groups need above all is tangible social support. Result of recent research on discrimination against the LGBT community in Italy should erase any doubt on the pressing needs of the social group in question. Not only are gays, lesbians and transgender people often victims of verbal and physical abuse, but they are also disadvantaged in the workplace and denied access to certain job positions, merely due to their sexual orientation. Landlords often refuse to rent or sell properties to transgender people for fear of their involvement in sex work. And while civil unions are viable in several Italian cities, many municipalities have voted against the motion. Surely, it is not by merely banning certain words or behaviours that we can address these and other issues.

The Scalfarotto law is unlikely to radically change society's views and attitudes. Surely, as for other anti-discrimination laws, this has a lot to do with its vague wording, its general nebulousness and the complexity of the issues at stake.  But it also has a lot to do with another major shortcoming - the bill fails to recognize that the LGBT community is a disadvantaged minority in Italian society, whose needs and desires are often suffocated by the whims of influential majority groups. The opponents of the Scalfarotto law may moan and grumble all they like, but really, they are not the underdogs.  

Edited by: Andreea Anastasiu