Italy, Corte Constituzionale, sentenza 11/06/2014 n° 170/2014
Cassazione Civile, sez. I, sentenza 21/04/2015 n° 8097
Automatic divorce rule unconstitutional in the absence of legally-recognised partnership offering the couple protection that was “substantially equivalent” to marriage
The claimants, spouses in an initially different-sex marriage, challenged the rules on the automatic dissolution of marriage in case one of the spouses changed their legal gender. The Supreme Court initially asked the Constitutional Court to determine the constitutionality of the statutory provisions in question. The Constitutional Court responded in the affirmative, as long as spouses lacked the possibility to turn their marriage into a substantially equivalent legally recognised partnership. However, the Constitutional Court judgment required legislative action providing for such alternatives. Unless and until Parliament took such action, the ban on same-sex marriage prevailed and therefore transgender marriages could not subsist. The Supreme Court clarified that the Constitution Court solution necessarily meant that marriages involving one transgender spouse who changed their legal gender had to benefit from some degree of protection until an alternative became available. In that sense, the Supreme Court stated that transgender marriages had to remain valid until Parliament introduced a legally recognized union that was substantially equivalent to marriage.
The two courts were in agreement in that the prohibition in question breached Art. 2 of the Italian Constitution, which guaranteed “the inviolable rights of the person, both as an individual and in the social groups where human personality is expressed.” In that sense, same-sex couples also formed a constitutionally protected “social group” deserving of legal recognition. The divorce requirement did not provide couples involving one transgender spouse with any continuity, transforming a family union characterized by an inviolable core of fundamental rights and duties of moral and material support to an status full of uncertainty, deprived of any legal protections.