Italian Constitution and transgender rights

The Constitution of the Italian Republic, which came into force on January 1, 1948, contains no explicit reference to transgender people, gender identity, or transition. This silence is not surprising: when the founding members wrote the fundamental Charter, the very concept of gender identity had not yet entered the legal lexicon. Yet, it is precisely from that text — through the interpretive work of the Constitutional Court — that the principles underpinning the rights of transgender people in Italy today have been derived. Articles such as 2, 3, and 32 of the Constitution have been read in an evolutionary key, becoming the foundation of a body of case law that has progressively recognized gender identity as a fundamental right of the person [2][3].

Understanding the relationship between the Constitution and trans rights means understanding how a text written nearly eighty years ago can still address questions its authors had not imagined, and what gaps remain open.

The relevant constitutional articles

Article 2: the inviolable rights of the person

Article 2 of the Constitution establishes that “the Republic recognizes and guarantees the inviolable rights of the person, both as an individual and in the social groups where human personality is expressed.” This provision has an open and dynamic meaning: it does not exhaustively list which rights are inviolable, but assigns the Republic the task of recognizing and guaranteeing them. It is precisely this characteristic — the so-called open clause — that has enabled constitutional case law to include the right to gender identity among them.

The Constitutional Court has stated, beginning with ruling 161/1985 and with increasing clarity in subsequent decisions, that the right to personal identity — understood as each person’s right to be recognized in their individuality — also encompasses gender identity [2][3]. In other words, Article 2 protects the person in their entirety, including the dimension of identification with a gender, even when this does not correspond to the sex assigned at birth. The recognition of gender identity is therefore not an extraneous addition to the Constitution, but an application of its deepest personalist principle.

Article 3: equality and equal social dignity

Article 3 is perhaps the most famous article of the Italian Constitution. The first paragraph reads: “All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinions, or personal and social conditions” [1]. The second paragraph adds that it is the Republic’s duty to “remove economic and social obstacles that, by limiting the freedom and equality of citizens, prevent the full development of the human person.”

For transgender people, this article has dual relevance. The prohibition of discrimination “based on sex” has been interpreted by case law as a principle that is not limited to the biological distinction between male and female, but encompasses the entire dimension of a person’s sexual and gender identity [5][11]. The concept of equal social dignity — an expression that has no equivalent in many other European constitutions — requires that no person be deprived of their social recognition because of their gender status.

The second paragraph of Article 3 is equally significant: the Republic does not merely prohibit formal discrimination, but actively commits to removing obstacles that prevent the full development of the person. For transgender people, this principle constitutes the constitutional foundation for demanding active inclusion policies, access to transition pathways, and protection against social marginalization.

Article 32: the right to health

Article 32 defines health as a “fundamental right of the individual and an interest of the community” and establishes that “no one may be compelled to undergo any specific health treatment except by provision of law.” This provision has played a crucial role in the judicial construction of transgender rights, on two distinct grounds.

On one hand, the right to health has been interpreted broadly, encompassing the person’s overall psychophysical well-being. The Constitutional Court has recognized that the condition of incongruence between perceived gender identity and assigned sex can generate suffering that the healthcare and legal system must help resolve [5][6]. Access to transition pathways — whether hormonal, surgical, or exclusively social and legal — therefore falls within the protection of the right to health.

On the other hand, the prohibition of compulsory medical treatments has grounded the elimination of the surgical requirement for vital records rectification. If the Constitution prohibits imposing a medical treatment on a person against their will, all the more reason the recognition of a fundamental right — gender identity — cannot be made conditional on undergoing an invasive and irreversible surgical intervention that the person does not desire [5].

Article 117: the international obligation

Although less well known in public debate, Article 117, first paragraph of the Constitution deserves attention. It establishes that legislative power is exercised in compliance with obligations arising from EU law and international obligations. This means that the provisions of the European Convention on Human Rights (ECHR) — and particularly Article 8 on the right to respect for private life — operate as an interposed parameter of constitutional legitimacy. The European Court of Human Rights has repeatedly stated that the right to gender identity falls within the concept of private life protected by Article 8 ECHR [14]. These rulings indirectly bind the Italian legal system as well, creating a virtuous circuit between European and national constitutional case law.

Landmark Constitutional Court rulings

Ruling 161/1985: validating Law 164

The first and decisive ruling of the Constitutional Court on transgender rights is ruling no. 161 of May 6, 1985 [2]. The Court of Cassation had raised questions of constitutional legitimacy regarding Articles 1 and 5 of Law 164/1982, arguing they conflicted with Articles 2, 3, 29, 30, and 32 of the Constitution. In essence, the Court was asked whether it was constitutionally legitimate to allow the rectification of registered sex.

The Court rejected all challenges entirely, declaring the full constitutional legitimacy of Law 164. The most significant passage of the ruling is where the Court states that it is “constitutionally desirable” for the transsexual person to be granted the ability to modify their sexual characteristics consistent with their perceived gender [3]. The Court further specified that “the natural order of the family is not disturbed by the civil rectification of sex change or by the ruling recognizing it, but by the transsexual syndrome that affects the individual concerned” [3].

This ruling has fundamental historical value: it established that the Constitution not only does not prevent the recognition of transgender people’s gender identity, but requires it as an expression of the personalist principle and the right to health. It is the starting point of all subsequent constitutional case law.

Ruling 170/2014: forced divorce

Ruling no. 170 of June 11, 2014 addressed a different but equally relevant issue: so-called forced divorce [4]. Article 4 of Law 164/1982 provided that the sex rectification ruling automatically caused the dissolution of the subject’s marriage. In practice, a married couple in which one spouse completed their transition found themselves divorced by operation of law, with no choice in the matter.

The Constitutional Court declared this provision unconstitutional, insofar as it did not provide for the two spouses to be able to maintain their relationship through another legally regulated form of registered partnership [4]. The Court found a violation of Article 2 of the Constitution: the automatic divorce constituted an “inadequate balancing” between the state’s interest in maintaining the heterosexual model of marriage and the rights acquired by the spouses in the context of their life as a couple.

This ruling highlighted how the rights of transgender people do not only concern the individual in transition, but extend to the entire network of family and emotional relationships.

Ruling 221/2015: the fall of the surgical requirement

Ruling no. 221 of November 5, 2015 is perhaps the most important ruling since 1985 [5]. The Court clearly stated that the surgical procedure for the reassignment of primary sexual characteristics is not a prerequisite for obtaining vital records sex rectification.

The Court stated verbatim that “the exclusion of the necessary character of the surgical intervention for the purposes of vital records rectification is the corollary of an approach that — consistent with supreme constitutional values — leaves to the individual the choice of the modalities through which to realize, with the assistance of a physician and other specialists, their own transition pathway” [5][8]. Surgical intervention is not prohibited, but becomes a personal choice, not an obligation imposed by the state.

The ruling further explicitly recognized that the Italian legal system protects the right to gender identity “as a constitutive element of the right to personal identity, falling fully within the sphere of fundamental rights of the person” guaranteed by Article 2 of the Constitution and Article 8 of the ECHR [5][11]. This formulation elevated the right to gender identity to the rank of a constitutionally protected right.

Ruling 180/2017: confirmation and consolidation

Ruling no. 180 of July 13, 2017 confirmed and consolidated the principles expressed in ruling 221/2015 [6]. The Court reiterated that the constitutionally correct interpretation of Law 164/1982 “allows excluding the necessity of surgical treatment for the purposes of normalizing sexual characteristics” [6][12], specifying that the primacy of individual health protection over the correspondence between anatomical features and registered sex means that surgical intervention is not a prerequisite for rectification, but a possible instrument for achieving full psychophysical well-being.

The ruling, however, introduced an element of balance: the Court required a “rigorous verification” not only of the seriousness and univocality of the intent, but also of the objective gender identity transition that has occurred, emerging from the pathway followed by the person concerned [6][12]. This means that rectification cannot be based solely on a declaration of will, but requires a demonstration of the transition pathway actually undertaken — a requirement that distinguishes the Italian model from the pure self-determination model adopted by other European countries [9].

Ruling 143/2024: judicial authorization and the non-binary question

Ruling no. 143 of July 23, 2024 is the most recent Constitutional Court ruling on the subject and addresses two questions raised by the Bolzano Court [7].

On the first question, the Court declared the unconstitutionality of Article 31, paragraph 4, of Legislative Decree 150/2011, insofar as it required the court to authorize surgical procedures for the adaptation of sexual characteristics. The Court observed that this requirement has no equivalent in the European landscape and has “paternalistic features” with respect to adults who are capable of self-determination [7][10]. Judicial authorization for surgery was thus eliminated as a requirement.

On the second question — the possibility of recognizing a non-binary gender identity, that is, one different from male and female — the Court adopted a nuanced position. It recognized that “the individual’s perception of not belonging to either the female or the male sex — from which arises the need to be recognized in an ‘other’ identity — generates a significant situation of distress with respect to the personalist principle to which the constitutional order grants centrality” [7]. However, it declared the question inadmissible, considering that the introduction of a third gender in the legal system is a choice that belongs to the legislature, not the constitutional court [7][10].

This ruling highlights the tension between the Court’s role — interpreting and applying the Constitution — and that of Parliament, which is responsible for legislative action. The Court opened a door, but established that it cannot walk through it alone.

The Constitution as a living document

The role of evolutionary interpretation

The rulings examined illustrate a legal phenomenon of great importance: the Constitution as a living document. The text of 1948 has not changed by a single comma in Articles 2, 3, and 32, yet their application to the rights of transgender people is radically different today compared to forty years ago. This is possible because the Constitution was conceived as an open document, capable of embracing new claims for protection without the need for formal amendments. The principles of dignity, equality, and health are formulated broadly enough to encompass situations the founders could not have foreseen.

The evolutionary interpretation of the Constitutional Court is not an act of judicial overreach, but a well-established method in contemporary constitutional law. The Court does not “invent” rights: it derives them from the existing normative fabric, in light of the evolution of social consciousness, scientific progress, and international obligations [14]. The recognition of the right to gender identity is the product of this hermeneutic operation, not of a political initiative by the Court.

The limits of the judicial approach

The fact that the rights of transgender people in Italy have been constructed almost entirely through constitutional case law, rather than through legislative action by Parliament, presents significant limitations [9].

The first limitation is fragmentation: the Constitutional Court’s rulings address individual specific questions — the surgical requirement, forced divorce, judicial authorization — without being able to design a comprehensive normative framework. This produces a system built through judicial precedent, where general principles must be pieced together case by case.

The second limitation is uneven application: since the principles expressed by the Court must be applied by lower courts across the national territory, their practical implementation varies significantly from one court to another, generating territorial disparities that contradict the principle of equality [13].

The third limitation is the inability to address systemic issues: as demonstrated by ruling 143/2024 on non-binary recognition, the Court cannot substitute for the legislature in choices that require a comprehensive normative intervention [7]. It can flag a problem, but cannot resolve it independently.

Comparison with other European constitutions

Malta: gender identity in the Constitution

Malta represents a unique case in the European landscape. In 2014, it inserted gender identity into its Constitution among the categories expressly protected from discrimination, becoming the first European state to take this step. The following year, in 2015, it approved the Gender Identity, Gender Expression and Sex Characteristics Act, which allows document modification through a simple notarial declaration, without any medical requirement. The Maltese approach is the most advanced in Europe: gender identity protection is constitutionalized and the recognition procedure is entirely depathologized and administrative.

Portugal and Spain: the legislative route

Portugal approved in 2018 a law on the right to self-determination of gender identity and gender expression, allowing vital records rectification from age sixteen without medical requirements. Spain adopted in 2023 the Ley Trans, with a similar self-determination system for those over sixteen. In both cases, the protection of transgender rights is the product of explicit legislative action, not a judicial interpretation of generic constitutional provisions.

Germany: from pathologization to self-determination

Germany followed a particularly significant trajectory. The Transsexuellengesetz of 1980, which conditioned legal recognition on very restrictive requirements (including sterilization and surgical intervention), was progressively dismantled by the Federal Constitutional Court (Bundesverfassungsgericht) through a series of rulings declaring its partial unconstitutionality — a path analogous, in many respects, to that taken by the Italian Constitutional Court with Law 164/1982. In 2024, Germany replaced the old law with the Selbstbestimmungsgesetz (self-determination act), which allows gender change through a simple declaration at the civil registry office.

Italy’s position in the European context

The comparison shows that Italy occupies an intermediate position [9][13]. On one hand, the Constitutional Court has built an advanced body of case law, recognizing the right to gender identity as a fundamental right and progressively removing the most serious obstacles (surgical requirement, judicial authorization for surgery). On the other hand, the lack of a comprehensive legislative intervention means that the protection of transgender people remains entrusted to judicial interpretation of general provisions, rather than to a specific and modern regulatory framework. According to TGEU (Transgender Europe) rankings, Italy meets approximately 7.5 out of 32 criteria on transgender rights — a figure that places it well below Portugal and Spain and that testifies to the gap between the quality of constitutional case law and the backwardness of the legislative framework.

Open constitutional questions

The absence of explicit protection against discrimination

Unlike what is provided for other personal characteristics (sex, race, religion, political opinions), gender identity is not mentioned in Article 3 of the Constitution or in any ordinary law as an explicit ground for prohibiting discrimination [13]. The failure of the DDL Zan in 2021 left this gap open. As a result, transgender people in Italy do not have specific anti-discrimination protection comparable to what they enjoy in other European countries.

Recognition of non-binary identities

As highlighted by ruling 143/2024, the Constitutional Court recognized that non-binary identities raise relevant questions under personalist principles (Article 2) and social dignity (Article 3), but referred the solution to the legislature [7][10]. The Italian legal system remains anchored to the male/female binary, and there are currently no advanced legislative proposals for the introduction of a third gender or a neutral registry category.

The right to health and access to transition pathways

Although Article 32 guarantees the right to health, actual access to medical transition pathways remains uneven across the national territory [13]. Waiting lists at public centers are long, National Health Service coverage for surgical procedures and hormone therapies is not uniform, and many people are forced to turn to the private sector at high cost. The gap between the constitutional principle and its effective implementation represents an open question of constitutional significance, since Article 3, second paragraph, requires the Republic to remove obstacles that limit the full development of the person.

The need for legislative reform

The Constitutional Court, while having progressively expanded the protection of transgender people through constitutionally oriented interpretation of Law 164/1982, cannot indefinitely compensate for legislative inaction [9]. The Court’s rulings operate by subtraction — eliminating illegitimate requirements, removing unconstitutional obstacles — but cannot build a comprehensive normative system. A modern law on gender identity recognition, incorporating the principles affirmed by constitutional case law and translating them into a clear, accessible, and uniform procedure across the national territory, remains an unachieved goal.

An incomplete balance

The Italian Constitution, through its fundamental principles of dignity, equality, and health protection, has provided the legal foundation for the recognition of transgender rights. The work of the Constitutional Court — from ruling 161/1985 to ruling 143/2024 — has built a coherent and progressive path, leading Italy to eliminate the most serious forms of violation of transgender people’s fundamental rights: compulsory sterilization, the surgical requirement, automatic divorce, and judicial authorization for surgery [2][4][5][6][7].

However, the balance achieved is incomplete. The protection of transgender rights in Italy still depends largely on judicial interpretation of general provisions, rather than on comprehensive and modern legislation [9]. The open questions — from anti-discrimination protection to non-binary recognition, from uniform access to healthcare to procedural simplification — require legislative intervention that the Constitution makes possible, and in part necessary, but that Parliament has not yet undertaken. The fundamental Charter has shown that it contains within itself the resources to protect transgender rights; it remains to be seen whether politics will be able to translate these resources into fully effective rights.