Italy has ruled a trans woman and a cisgender man are allowed to marry.
In an unprecedented landmark ruling, the Court of Appeal of Milan agreed to recognise a marriage contracted between a man and a trans woman in Argentina in 2011 earlier this month.
At the time of the wedding both individuals were legally male, but that changed when, a year later, one individual re-assigned, legally, as female.
As far as the Milan court is concerned, that is good enough. In overturning an earlier refusal to register the marriage, the family section of the court declared that it was entirely in conformity with ‘the heterosexual paradigm’.
They argue that, since one half of the couple is a woman, it makes no sense to focus on past identity.
The judges declared: ‘This woman’s marriage contract with an Italian citizen must be considered in every respect, including that of Italian law, identical to a marriage contracted between persons of opposite gender. It does not contradict public policy – and it gives rise to exactly the same legal rights and outcomes as any other marriage.’
It may seem surprising that such a ruling would be handed down in a country where equal marriage remains unlawful, and where opposition to any change in the law remains an article of literal faith on the part of many politicians.
However, this is to miss the fact that over the last decade, Italian judges have shown themselves to be significantly more progressive than the political class on this issue.
In 2013, a court in Reggio Emilia overturned a decision by immigration authorities to remove a Brazilian national from Italy on grounds that their marriage to an Italian citizen was invalidated by a ‘change of gender’.
However, they also argued a key consideration in coming to this decision was the fact that although the individual had undergone male-to-female surgical reassignment, they remained, according to their legal documentation, registered as legally male.
This compromise has since been challenged further by Italy’s Contitutional Court – in many respects the equivalent of the US Supreme Court – which ruled, in the case of Alessandra and Alessandra in June 2014, that to annul a marriage because one party has changed gender is unconstitutional.
This was followed up with a declaration in April of this year that upheld the validity of the couple’s marriage. In passing down judgment, the court noted, perhaps a little impatiently, that they were ‘not intending to invade the legislative competence of the Parliament’, but ‘until the legislature intervenes, and the Court has paved the way for such intervention, the national court must interpret on a case by case basis. ‘