[:it]Edited by the Head of the Legal Sector of Arcigay – Attorney Salvatore Simioli
Analysis of the bill approved by the Chamber of Deputies on November 4, 2020
“Measures to prevent and combat discrimination and violence based on sex, gender, sexual orientation, gender identity and disability”
Link to the text of the law approved by the Chamber
On November 4, 2020, with 265 votes in favor, 193 against, The Law on measures to prevent and combat discrimination and violence based on sex, gender, sexual orientation, gender identity, and disability has been approved by the Chamber of Deputies..
The text of the law approved by the Chamber is made up of ten articles, the first six concern the criminal field (1-6) and the remaining four (art.7-10) the positive actions to specifically combat discrimination on grounds of sexual orientation and gender identity.
Article 1, It concerns the definitions of sex, gender, sexual orientation and gender identity. From a technical-legal point of view, it could not have been included, because these terms are already widely used by the Court of Cassation and the Constitutional Court, therefore they did not need to be defined by the legislator. "Rigid" definitions risk excluding certain offenses that the law is certainly intended to repress (for example, criminal conduct motivated by hatred toward asexual or intersex people). To assess their substantial impact, it will be necessary to monitor the evolution of case law to determine whether judges will apply the protections extensively or not. It should be noted that the inclusion of Article 1 (definitions) was requested by the Constitutional Affairs Committee and is intended to avoid any doubts about the law's constitutionality. It is worth remembering that in 2009, the law against homophobia and transphobia was "scuttled" with the approval of a preliminary question of constitutionality (proposed by the UDC) that alleged a violation of the principle of specificity of criminal offenses due to the alleged vagueness of the term "sexual orientation." Therefore, with the introduction of definitions, the aim was to remove a stumbling block from the law's path.
Articles 2 and 3 concern the "core" of the law and introduce amendments to Articles 604 bis and 604 ter of the Criminal Code.
Article 2 includes sex, gender, sexual orientation, gender identity and disability among the motives for the crimes listed in the article 604-bis of the penal code, aimed at protecting respect for human dignity and the principle of substantial equality, through the punishment of any conduct of instigation or commission of discrimination or violence on ethnic, racial or religious grounds, “or based on sex, gender, sexual orientation, gender identity or disability.”.
Therefore who incites to commit or commits acts of discrimination based on sex, gender, sexual orientation, gender identity or disability is punishable by imprisonment of up to one year and six months or a fine of up to 6,000 euros, as already provided for the other offences covered by the provision (for racial, ethnic, national or religious reasons)
Furthermore who incites to commit or commits violence or acts of provocation to violence based on sex, gender, sexual orientation, gender identity, or disability is punishable by imprisonment from six months to four years, as already provided for other offences covered by the provision (for racial, ethnic, national, or religious reasons).
The article also intervenes to integrate the provision that prohibits any form of organization, association, movement, or group whose purposes include discrimination or violence based on sex, gender, sexual orientation, gender identity, or disability.
The proposal approved by the Chamber did not modify the part of article 604 bis letter a of the penal code relating to the crime of propaganda., which currently only punishes the propaganda of ideas based on racial or ethnic superiority or hatred. Moreover, no bill introduced in the Chamber of Deputies envisaged extending the crime of propaganda.
Article 3 provides for the amendment of Article 604-ter of the Criminal Code, establishing that the aggravating circumstance The provision provided for therein should be extended to crimes committed based on the victim's sex, gender, sexual orientation, gender identity, or disability. This aggravating circumstance, for crimes punishable by a sentence other than life imprisonment, entails increasing the sentence by up to half.
Article 4 , concerns the protection of the “pluralism of ideas and freedom of choice”. From a technical standpoint, this article is superfluous because Article 21 of the Constitution already guarantees freedom of expression. Furthermore, criminal law in our legal system is interpreted and applied according to the principles of legality and specificity (pursuant to Article 25 of the Constitution and Article 2 of the Criminal Code: no one can be punished for an act that, according to the law at the time it was committed, did not constitute a crime). Therefore, actions not expressly criminalized by law are not punishable, even if they are socially dangerous. It makes no sense, therefore, to specify conduct that does not constitute a crime, unless one wishes to surreptitiously permit, or even make legal, conduct that would typically be unlawful under the same law.
Fortunately, the approved article is very different from the one included in the consolidated text submitted for discussion in the Chamber; it no longer introduces an exemption, but it still lends itself to interpretative doubts.
In the new wording the article has become: “are safe (and no longer “allowed” as in the previous version) the free expression of beliefs or opinions as well as legitimate conduct attributable to the pluralism of ideas or freedom of choice, (and completed with the following addition which was missing in the first draft) provided that they are not capable of determining the concrete danger of committing discriminatory or violent acts”.
The introduction of this article is a political, not a technical, choice, likely aimed at ensuring a sufficient majority for the law's approval. A necessary bitter pill to swallow.
Article 5 Extends and modifies the additional penalties for convictions under Articles 604 bis and 604 ter of the Criminal Code (for discrimination, hatred, or violence based on race, ethnicity, nationality, religion, or sex, gender, sexual orientation, gender identity, or disability), providing for the possibility of suspended sentences in the case of unpaid work for the benefit of the community for social purposes or public utility.
Article 6 amends Article 90-quater of the Code of Criminal Procedure, providing that the assessment of the condition of particular vulnerability of the injured party may also be determined by having suffered crimes motivated by sex, gender, sexual orientation or gender identity.
The recognition of this condition gives the injured party greater protection in the legal proceedings..
In particular, Article 134 of the Code of Criminal Procedure permits the reproduction of statements made by an injured party who is particularly vulnerable.
Article 7 establishes, on May 17, as "“National Day Against Homophobia, Lesbophobia, Biphobia, and Transphobia” to promote a culture of respect and inclusion as well as to combat prejudice, discrimination, and violence based on sexual orientation and gender identity, in accordance with the principles of equality and equal social dignity enshrined in the Constitution.
This article was also significantly revised during the approval process. Specifically, it was specified that ceremonies, meetings, and any other useful initiative held on the occasion of the National Day of May 17th, aimed at promoting a culture of respect and inclusion as well as combating prejudice, discrimination, and violence based on sexual orientation and gender identity, in accordance with the principles of equality and equal social dignity enshrined in the Constitution, may be held in schools, in compliance with the three-year curriculum plan established by Law No. 10 of 2015. In practice, schools must have parental consent to carry out initiatives aimed at implementing constitutional principles, such as equality and non-discrimination. As if these were negotiable values, a supplementary and non-essential educational offering. The problem lies at the root, in Law 10 of 2015, which treats all extracurricular activities equally without distinction. This is a weakness and even a dangerous issue inherent in that law, a problem that is necessarily reflected in this article. What is provided for in this article is therefore a small waltz that, overall, takes a step forward and then a half-step back. The most appropriate solution is probably for educational activities aimed at implementing constitutional principles to be fully integrated into the curriculum. This way, for example, a homophobic or racist parent would be prevented from preventing the school from carrying out activities to prevent homophobia and racism.
Article 8 provides for amendments to Legislative Decree No. 215 of 9 July 2003, regarding the prevention and fight against discrimination based on sexual orientation and gender identity.. Grants UNAR the authority to develop, every three years, a national strategy for preventing and combating discrimination based on sexual orientation and gender identity. The strategy defines objectives and identifies measures relating to education and training, employment, security, including prison conditions, communication, and the media. The strategy is developed through ongoing consultation with local governments, trade organizations, and associations active in combating discrimination and promoting equal treatment, and identifies specific interventions aimed at preventing and combating the emergence of violence and discrimination based on sexual orientation and gender identity.
Article 9, provides for measures to prevent and combat violence based on sexual orientation and gender identity and to support victims, intervenes in the programme for the implementation throughout the national territory of anti-discrimination centersmotivated by sexual orientation and gender identity, established with a fund of 4 million euros (for each year) already definitively approved by the Senate.
Article 10 intervenes to overcome the poor or non-existent collection by national statistical institutes of data relating to discrimination and violence for reasons related to sexual orientation and gender identity, but also for racial, ethnic, national or religious reasons
The proposed law establishes that ISTAT, within the scope of its institutional resources and competences, ensures the performance, with at least every three years, a statistical survey of population attitudes. The survey should measure the discrimination and violence experienced and the characteristics of those most at risk.
Overall, despite the critical issues highlighted above, the innovative effectiveness of the law remains substantially unchanged, and it will now be discussed and, hopefully, quickly approved by the Senate without further amendments.
The law's troubled history and some of the solutions found in the text, such as the redundant need to reiterate the principles of freedom of opinion already enshrined in the Constitution and case law, once again highlight the difficulties politicians face in addressing laws affecting LGBTI people.
