Embedding Gender in Society

The Example of Italy

There is, no one can deny, a move to embed gender ideology in society. This move has at least three phases: the legal, the political and the cultural. I am focusing here today on the legal means, but it has to be kept in mind that these three phases move in synergy—they reinforce each other and fill each other’s voids and strengthen each other’s weak points, with the cultural pushing the political centre stage, and the political prefiguring the legal where the law resists change (as the law is wont to do).

But back to the legal aspects. There are several strategies for embedding gender ideology in domestic and international law, though in this piece I focus on the domestic legal strategies. And I stress gender ideology, not transgender ideology, because the ultimate goal is to eliminate sex as a significant category in law and policy, not simply to create rights and protections for transgender and transsexual individuals. An intermediate step is the dissolution of the distinction between sex and gender, and here is where transgender rights become the useful tool for operating this dissolution. 

The first strategy is to recognise self-identification as the only step necessary for changing sex in legal documents and imposing this change socially. Laws on self-identification (self-ID) have been passed in Malta, Argentina, Ireland and other countries. I select those three purposedly, to show how laws on transgender rights do not overlap with or map onto women’s rights and protection. For example, Malta which is considered the best country in the Council of Europe for LGBT+ rights (on the back of its self-ID law) is also the only country in Europe to outlaw abortions. 

The second strategy consists in eliminating references to sex or words referring specifically to women in legislation designed specifically for women in their different roles. For example, the Period Products (Free Provisions) (Scotland) Act does not contain the words woman/women or female/females once, referring instead to “persons who need to use [period products].” In the Ministerial and Other Maternity Allowences Bill (2021), an attempt was made to eliminate the word “mother” in a piece of legislation designed exclusively for expectant mothers. 

The third strategy is to replace “sex” with “gender” in legislation where sex is the relevant characteristic for the conferral of rights. So in the Gender Representation on Public Boards (Scotland) Act 2018, designed to increase female representation on public boards, the definition of “woman” includes a person with the protected characteristic of gender reassignment in accordance with  section 7 of the Equality Act 2010, which includes males who have not taken any steps in the transition process. Similarly, in the recent parliamentary debates on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021, the attempt was made to guarantee for the victims of sexual violence the choice of “gender” of the medical examiner. Johann Lamont, of the Scottish Labour Party and an MSP, introduced the six-word amendment “for the word ‘gender’ substitute ‘sex’” that was immediately attacked as transphobic by SNP and Green Party MSPs. The amendment passed but the debate laid bare the strategy of gender ideologists, who stopped at nothing in their pursuit of this replacement move. Out with sex, in with gender, even if it means forcing a woman who has been raped to undergo a gynaecological exam by a man who identifies as a woman.  

The fourth strategy is to introduce gender identity or transgender identity as a protected category in hate crime legislation. Once again in Scotland (which has become a laboratory for the imposition of gender ideology on a relatively weak nation with ambitions of independence, always a fertile ground for extreme ideologies) the recently passed Hate Crime and Public Order (Scotland) Act 2021 introduces transgender identity as a protected category, as widely intended as the Stonewall “trans umbrella” therefore including cross-dressers. Women are not a protected category in the Act, and misogyny not a hate crime, because, as stated in parliament, of the difficulties in defining the crime (or, one avers, the category of woman). 

This fourth strategy brings us to the specific topic of this article. The introduction in Italian law of a specific hate crime on the basis of gender and gender identity. How did we get here?

The so-called Ddl Zan (Ddl stands for “disegno di legge” and is the equivalent of “bill” in English, i.e. a legislative proposal for a new act of parliament) takes its name from Alessandro Zan, an MP for the centre-left PD (“Partito Democratico”). The law is designed to extend hate crimes, which the 1993 “legge Mancino” restricted to nationality, ethnic background and religion, to sex, gender, gender identity, sexual orientation and disability status. The Bill was introduced in parliament on 2 May 2018 and approved by the Lower Chamber on 4 November 2020. Since then it has been sitting in the Senate and the president of the Justice Committee, a member of the Lega Party, which opposes the law and has presented its own bill, has been accused of delaying tactics. 

While the law has divided parliament, and in general the electorate, along party lines, some feminist groups and some constitutionalists have criticised its content, by and large the feminist groups for the introduction of gender identity into Italian law and the constitutionalists for the vagueness of the law and its possible repercussions on free speech, a constitutionally-protected right. 

The most problematic aspects of the Bill have to do with the introduction of gender identity into Italian law. Article 1 of the Bill provides the definition of the terms used in the text and recites as follows: 

1. For the purposes of this law: a) “sex” means biological or legal sex; b) “gender” means any external manifestation by a person, either congruent or incongruent with the social expectations related to sex; c) “sexual orientation” means sexual or romantic attraction for persons of the opposite sex, of the same sex, or of both sexes; d) “gender identity” means the perceived and manifested identification of oneself in relation to gender, even if not corresponding to sex, independently from the completion of a transition process.

It is immediately evident, and problematic, that a law designed to criminalise transphobia, does not provide any definition of trans, or transgender, or transphobia. Equally, the distinction between gender and gender identity is not clear for the purpose of discrimination or victimisation on the basis of either. What would discrimination on the basis of gender look like, and on the basis of gender identity, and how would they differ?

In the definition of gender identity, the reference to the protection extending to the individual independently from any process of transition seems a reference to self-ID by another name. 

Those who defend the Bill claim that Italian law is quite clear on the process necessary to legally change sex, which includes a judge-made decision on the basis of a psychological assessment. Originally the law, which dates back to 1982 (legge 164/1982), also included a surgical step, however, the Corte di Cassazione in 2015 dispensed with this step. 

Additionally, the proponents of the law say,  Article 1 clarifies that these definitions are only applicable in the context of this law, and cannot be used to introduce self-ID in the Italian legal system. Be that as it may, it is quite clear that the strategy is incremental and designed to normalise ideas such as sexual orientation as “romantic attraction," gender as superseding sex and gender identity as completely decoupled both from sex and from gender. 

If we look outside of Italy, at the countries that are brought as an example of good practice by the proponents of the Bill, we see that the introduction of hate crime or equality legislation, even in the absence of any specific self-ID  mechanism, has contributed to blurring the distinction between sex and gender, with detrimental effects on women. In the UK, the Equality Act has been misapplied, with the result that the sex exceptions contained in it, designed to guarantee that female-only spaces and services can exclude people with the protected characteristic of gender reassignment, are regularly ignored, and even schools provide “gender neutral” toilets, in breach of specific regulations. In Scotland, the recently approved and not yet in force hate crime act has already created a climate of a witch hunt in which women fear that even the discussion of their sex-based rights can attract accusations of transphobia. Also in Scotland, a freedom of information request has revealed that sex offenders have been recorded according to their self-identified gender (which will then be equated to sex for statistical purposes) and not their male sex. 

And back in Italy while proponents of the Ddl Zan have insisted it would not affect, for example, the rules on participation in sports, transgender athlete “Valentina”  Petrillo, who only started identifying as a woman in 2019, has won several medals in the Italian Paralympic Athletics Championships competing as a female and is slated to participate in the Tokyo Paralympics this summer. As for the rules on self-ID in Scotland, it is not quite clear what is the domestic legal basis of this decision. 

Transgender students have been allowed, in several universities, to register with their preferred gender and not their real sex. Again, there is no specific legal basis for this decision. 

As already noted, some constitutionalists and politicians have expressed disquiet at Article 4 of the Ddl Zan, which preserves freedom of speech right in the context of the application of this law. The disquiet is generated by the language of the article, that seems to subordinate constitutional free speech rights to compliance with the provisions of the law, which is clearly unacceptable. The article indeed states: 

1. The present law is without prejudice to the free expression of beliefs or opinions, as well as actions attributable to pluralism and free choice, provided that they would not constitute material danger of the commission of discriminatory OR violent acts. 

The text in italics not only subordinates free speech to compliance with the Ddl Zan but also does not require for the acts to be both discriminatory and violent, leaving some doubts as to whether excluding a transwoman from a female-only space, right or service can be construed as discrimination on the basis of gender or gender identity. 

Finally, Article 7 of the Bill establishes a National Day against Homophobia, Lesbophobia, Biphobia and Transphobia, on 17 May. The most controversial aspect, criticised also by right-wing and conservative catholic groups, is the involvment of schools. The article says as follows:

The Republic indicates the 17 of May as the National Day against homophobia, lesbophobia, biphobia and transphobia, in order to promote the culture of respect and inclusion, as well as to combat prejudices, discrimination and acts of violence because of the sexual orientation or gender identity of the victims, to implement the constitutional principles of equality and human dignity. […] On this day, ceremonies, meetings and any other initiative for the realisation of the goals listed in para. 1 will take place. The schools, […] and other public organisations will organise the events listed above, consistently with their resources and in any event at no additional cost for the public purse. 

Note that all schools can participate—including primary schools. And that of course means that one cannot combat discrimination on the basis of gender identity without indoctrinating children on this concept, which relies on belief in order to be apprehended, being outside of human perception. This is a form of religious indoctrination masquerading as “inclusion” and “equality.” 

Notice also that the expenses for the organisation of these events is not to be covered by public funds, allowing the entrance of private or non-profit organisations into schools, with limited oversight. Given the damage done by an organisation such as Stonewall in the British school system and universities, one needs to be extremely wary of any such mechanism being put in place in a law ostensibly against hate crimes.