The Italian ‘Zan bill’ poses a serious threat to the freedom of speech

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• The Italian Senate held the first reading of the ‘Zan bill’ against ‘homophobia, lesbophobia, biphobia and transphobia’.

• The bill had been reviewed by the Chamber of Deputies since 2018, where it was adopted by the majority of 265 against 193 deputies.

• The bill poses a serious threat to the family, upbringing and freedom of speech by proposing severe penalties based on abstract definitions that detach sexuality from genetic and biological factors.

• The Holy See and Pope Francis officially oppose the bill.

“The freedom to have a different opinion, engage in pragmatic disputes and confront ideas would be replaced with a penal tool to cut short any discussion. The experience of countries that have introduced such measures shows that they radically limit discussion on sexuality, marriage, family and upbringing and eliminate fully authorised opinions from public debate”, says Attorney Rafał Dorosiński, Director of the Ordo Iuris Centre for the Legal Studies.

The bill, which sets out ‘measures to prevent and combat discrimination and violence based on sex, gender, sexual orientation, gender identity and disability’ (number in the Chamber: C.107, number in the Senate: S.2005), was brought to the Chamber of Deputies on the first day of its 18^th term – on 23 March 2018 – by Deputies Laura Boldrini (elected on the same day as the Speaker of the Chamber) and Roberto Speranza. It is a repetition, with minor modifications and amendments, of the bill proposed on the first day of the previous term of the Chamber – on 15 March 2013 (print no. 254). On 4 November 2020, the bill was approved by 265 deputies with 193 votes against and was forwarded for review to the Senate. On 25 May 2021, the Commission held its first reading.

The bill consists of 10 articles. The first sets forth legal definitions of concepts related to gender identity:

1. 1. Sex (sesso) – understood as biological sex or sex registered at birth (biologico o anagrafico);
   2. Gender (genere, socio-cultural sex) – understood as any external manifestations that are in line with or contrary to sex-related social expectations;
   3. Sexual orientation (orientamento sessuale) – understood as sexual or emotional attraction to persons of the opposite or same sex or both sexes;
   4. Gender identity (identità di genere) – understood as one’s perception and manifestation of one’s own gender, even if it does not correspond to one’s sex, whether or not one has undergone transition.

In addition, the bill amends Article 604-bis of the Criminal Code, which imposes the penalty of up to one and a half years of imprisonment or a fine of up to EUR 6,000 for propaganda and incitement to commit crimes for reasons of racial, ethnic and religious discrimination. The bill proposes to add discrimination and violence based on sex, gender, sexual orientation, gender identity and disability to the existing list of crime reasons (racial, ethnic and religious discrimination).

This way (by adding reasons based on sex, gender, sexual orientation, gender identity and disability), it updates the Decree with the force of law of 26 April 1993 on the penalties for incitement to commit crimes.

Moreover, the bill:

• proposes a new national day to be held on 17 May – the National Day Against Homophobia, Lesbophobia, Biphobia and Transphobia ‘in order to promote a culture of respect and inclusion and fight prejudice, discrimination and crimes for reasons of sexual orientation and gender identity and ensure respect for the principle of equality and equal social dignity sanctioned by the Constitution’. This would not be a public holiday but an occasion to organise various events and initiatives;
• updates the Decree with the force of law of 8 July 2003, obliging State authorities to develop a national strategy to prevent and combat discrimination for reasons of sexual orientation and gender identity (strategia nazionale per la prevenzione e il contrasto delle discriminazioni per motivi legati all’orientamento sessuale e all’identità di genere). The strategy is to be developed through regular consultation with local authorities, business organisations and associations that combat discrimination for reasons of sexual orientation and gender identity;
• obliges statistical authorities to conduct every three years, having consulted the Observatory for Security against Acts of Discrimination (OSCAD), a statistical survey concerning acts of discrimination, also for reasons of sexual orientation and gender identity.

One of the basic arguments against the bill is imprecision of the above definitions of ’gender’ and gender identity. These abstract ideas are put on a par with more specific concepts such as race, nationality or religion. Given the fact that the proponents of extending the concept of marriage to same-sex unions claim the affirmation of marriage and family to be ‘condescending’ and ‘discriminatory’, the bill poses the threat that persons and institutions whose opinions are contrary to those of LGBT organisations will be severely prosecuted under the Criminal Code.

Thus, the bill raises major concerns as to respecting the freedom of expression guaranteed both by the Italian Constitution and international treaties. Insofar as the reasons currently listed in Article 604-bis of the Italian Criminal Code are limited to concepts of fundamental importance for our civilisation - nation, ethnicity, race, statehood and religion - adding unclear categories coined by groups that engage in homosexual practices might significantly limit the freedom of speech.

Importantly, the Italian legal order already provides for a number of penal and other measures to prevent violence against anyone, regardless of their specific traits or self-definitions. They include the right to be protected against defamation and penalties for illegal threats and for violation of bodily integrity. In turn, under civil law one can pursue, inter alia, liability for damages.

On 17 June 2021, the Secretariat of State of the Holy See issued a special note (Nota Verbale) to the Italian Government claiming that the bill in its current form contradicts Articles 2.1 and 2.3 of the Concordat between Italy and the Holy See of 18 February 1984, which guarantees full freedom for the Catholic Church to fulfil its pastoral, educational and charity mission as well as full freedom of expression for believers and their associations. In an interview on 24 June, Cardinal Giovanni Battista Re, Dean of the College of Cardinals, confirmed that Pope Francis had approved the full text of the Note.