It is interesting to zoom in into the parliamentary debates that preceded the passages of these laws. I have focused on the Italian law for two reasons: because of language accessibility, and because Italy was one of the first countries in Europe, if not the first, to legislate on these matters.
The bill was first proposed in the Italian parliament on 28 February 1980 by 18 MPs of the ‘Partito Radicale’ a party that fought many battles on civil rights in Italy, including divorce, abortion and gay rights. So clearly this bill was thought of as being in the same vein. The parliamentary debate is opened by the presentation of the bill, in which the individuals supporting the law claim that the law is designed to
solve the issues facing transsexuals who, following medical and surgical modification of their external male genitalia to approximate female genitalia, overcoming their sexual hybridism by sexually identifying with women and matching their body with their psyche (ah the wrong body fallacy makes an appearance here), thereby solving their existential drama and their psychological dissociation, which affect their mental health and their relationships.
Notice first that this law is presumed to apply exclusively to males who wish to ‘become females’. The ground is laid with the usual arguments presented by trans activists since. We are still missing the pseudo-scientific claims of non immutability of sex/sex as a spectrum, courtesy of some previous case law where transsexuals had undergone body modification. At the time, Italian law criminalised mutilation so any doctor who performed these operations could be reported. This is clear from the language of Article 7 of Law 164 (Acceptance of the request of amendment of sex attribution will extinguish criminal liability potentially arising from the surgical treatment at Article 6).
Scientific ‘truth’ comes to us to a quote from we are told, court judgments, in which the ‘change of sex’ was recognised, and in which the judge stated that:
Birth (in the text ‘original’) sex, otherwise known as official sex, cannot be defined as an immutable characteristic, but rather a juridical fact supported by a relative presumption. If proven otherwise, the judge cannot remain unmoved by the modification of the sexual characteristics and should grant permission to amend the registry. All individuals have under Article 3 of our Constitution the duty to self-realisation, a trend that is already present in ordinary laws. Therefore if the change of sex without an objective justification could be considered an injury to an individual’s self-realisation, with an irreversible damage to that individual (and to society), the change itself can be said to have a diametrally opposite scope, to the extent that it is justified not as a free and arbitrary choice of the concerned individual, but as a consequence of medical cures and surgical interventions, to affirm a natural tendency, or to prevent injury to health (for example mental health issues) and to affect the individual’s behaviour. Under these conditions sex, even as recorded in public documents, cannot be considered an immutable characteristic of the person, least of all one legally acquired at birth.
You will be forgiven for asking yourself what exactly is the judge smoking. What this quote evidences is a clear tendency to conceptualise sex as ‘legal sex’. A juridical fact supported by nothing more than a presumption. A presumption that can be overturned not through an arbitrary choice of the individual (no self-ID, phew) but as a medical intervention to affirm the individual’s ‘naturale tendenza’ (as an Italian, I cannot help thinking that the judge is here referring to ‘homosexual tendencies’.) The reference to the individual’s behaviour is also to be read, I believe, in this vein. This sort of regressive judicial thinking (there is a strong flavour of ‘these are not real men’) underpins what became the law and it is surprising to see the ‘progressive’ Radical Party quote it unproblematically.
The MP introducing the bill in parliament also references the familiar arguments about biological and psychological sex which we have also seen in English courts more or less at the same time, with a clear indication that biological sex does not enjoy a default status, but that a case-by-case assessment of the individual needs to be performed. He goes as far as to claim that transsexuality has a genetic, biological and endocrinological component, so that it is not a matter of psychological sex alone (these claims are repeated throughout the literature in support of transsexuality but I have never seen it substantiated in any serious way). The favourable jurisprudence quoted by the MP is all evidently from the period preceeding the 1970s. I do not need to tell you that Italian society was at the time virulently homophobic, quite aside from political affiliation, so those judgments have to be read in that light.
The bill is rendered necessary in the Italian legal system because of a contrary decision of the Italian Cassation Court (the equivalent to the UK Supreme Court for civil and criminal cases) of 22 Februry 1972, determining that the Italian legal system could not allow the law to recognise transsexuality in the sense of permitting the change of sex as recorded at birth.
The Constitutional Court’s Judgment No. 98 of 1979 confirming the Cassation Court’s judgment of 1972 put a complete stop to lower courts’ creative judgments allowing for the recognition of this elusive ‘psychological sex’. It should not be forgotten that before 1972 those who had sought to have their transsexuality recognised had to do so by court’s order, not admnistrative process. A contrary sentence by both of Italy’s highest courts could not have any other effect than a complete stop to any such proceedings. The Italian Constitutional Court did leave open the possibility of the legislator dealing with what it saw as an issue.
This is the space where the Radical Party stepped in, proposing to amend article 454 of the Civil Code, regulating the rectification of official acts, clarifying that this procedure ought to be available also in those circumstances in which ‘current facts do not correspond to those ascertained at the time of birth’. It is a matter, the legislator posits, to allow individuals to correct ‘un errore della natura’ (a mistake of nature). The wrong body narrative was starting to take hold.
We have already seen the final text of law 164 of 1982. Its legislative history shows that Italy was one of the earliest actors in the legal recognition of transsexuality.
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Fascinating, thank you! I'm struck by the "these are not real men" tone you pointed out. The aim seems to protect traditional masculinity by relegating nonconformists to the lesser, other female status. From that perspective, women's rights are irrelevant. The important thing is to get the queers out of the man's club.
Great historical notes, thanks