LGBTQ+ rights: the role of court rulings in the ongoing dispute between Italia and the EU
From the law against homotransphobia to family law, the Italian legislature is failing to tackle the key issues required to establish a regulatory framework consistent with EU policies
Key points
They were attacked and beaten by a group of young people, believed to be under-18s. The violence suffered by a transgender couple took place in Labico on the night of 6–7 June. This is just one of hundreds of incidents recorded from Treviso to Caserta. The 2026 Homophobic, Lesbophobic and Transphobic Report, published by Arcigay, records 127 incidents of violence, discrimination and hate directed against LGBTQIA+ individuals, organisations and symbols, as reported by the Italian media over the last twelve months. However, these are only the incidents that have made the news. The number of unreported cases – due to fear of reporting the incident, public exposure, or family or professional reprisals – is structurally much higher. In Italia, there is no specific law penalising crimes or hate speech motivated by sexual orientation or gender identity. Attempts to address this gap through draft legislation, such as the Zan bill, have been approved by the Chamber of Deputies but subsequently rejected by the Senate.
However, impetus in this direction is coming from Europe, as is often the case with LGBTQ+ rights: in May, the European Parliament gave the green light to new EU rules to strengthen the protection of victims of crime, with specific safeguards for those who have suffered sexual violence or crimes linked to sexual orientation, gender identity or disability. The Victims’ Rights Directive, approved in plenary in Strasbourg with 440 votes in favour, 49 against and 84 abstentions, also introduces certain safeguards that had been provided for in Italia’s Zan bill. The text must now be formally adopted by the EU Council. Member States will then have two years to transpose it into their respective national laws.
The Italian regulatory framework
More generally, the situation in Italia from 2020 to the present can be summarised as follows: no major legislative reforms and no parliamentary debate that has resulted in a vote. Yet, looking at the period 2020–2026, the landscape of LGBTQ+ rights in Italia appears to have changed profoundly compared with six years ago. It has not been the legislature – which has remained largely inactive – that has reshaped this landscape, but rather a combination of rulings by the Constitutional Court, European case law and regulatory impetus from Brussels. The result is a system of legal protections that is advancing through the courts, with all the limitations on its coherence that this entails, but also with a dogmatic solidity that is unlikely to be undermined.
Until a few years ago, the Italian legal framework remained essentially that set out in Law 76 of 2016. The so-called Cirinnà Law introduced civil partnerships for same-sex couples, recognising a range of property, inheritance and care rights, but deliberately stopping short of full equivalence with marriage and leaving the most sensitive issue unresolved: parenthood. The gap was evident, and the national and European courts have set about filling it, piece by piece.
The Constitutional Court: a substitute legislator
The supplementary role played by the Constitutional Court is the most significant development of this period. Judgments 32 and 33 of 2021 had already paved the way, clearly stating that sexual orientation does not affect parental suitability and referring to Articles 2, 3 and 30 of the Constitution, together with the principle of the best interests of the child, derived from Article 8 of the ECHR and Article 24 of the Charter of Fundamental Rights of the European Union.
