Gender, Equality and non- discrimination Philosophy of Law –M.Bonfili, 2015

Gender between equality and non discrimination With reference to both gender identity and sexual orientation the gender and queer claims have in common the appeal to equality and non-discrimination The issue is to understand why a person is equal or unequal; therefore how and why they are treated differently from a legal point of view

Equality  does not concide with identity  presupposes diversity i.e. only if two things are different they acn be equal otherwise they would be dientical Similiarly, inequality does not coincide with difference, even assuming it: when compared things do not have relevant similiar characteristics.

Equality does not mean to treat everyone in the same way The non-consideration of differences would express the cancellation of the differences that would lead to “in-difference” and homologation This does not pay justice to each category taken into consideration for legal protection/recognition

Femminist theories Some femminist orientations question the principle of equality(in its neutral and abstract meaning) since this risks to introduce the discrimination of sexual diversity Women that once fought to achieve equality compared to men realised that equality hid the discrimination of their different identity

Women are different from men and thus if they are treated like men they are unduely assimilated to them and undergo discrimination Equal dignity/opportunities  intro of similiar/different treatment due to the similiarities and differences of men and women

Modern and post-modern gender theories Such theories claim that the different treatment of transexuals/intersexuals/transgenders/homosexu als is discriminatory In this sense, these individuals call for equality/equalization of rights within the following areas: Free expression of thought Social participation Family sphere

Equality/Law Equality  condition of possibility of law In a structural sense, equality= “Quantifier of universalization”  allows to extend the recognition of rights to all human beings regardless of differences But law must not absolutize equality otherwise would risk ignoring and flattening differences

Law (ontological sense)integrated value of justice= “giving to every man his own”  avoid treating unequal equally  progressively adjusting the law to concrete diversity  equity Ontologically universal law “of principle” cannot neglect existential diversity “of fact”

Unbalance law/justice/equity 1)treating unequal equally 2)unilateral imposition of a difference unjustly considered superior to others Equality is structural principle/objective to a chieve/regulating principle of law/interpretation according demands arising from practice

True: Man and woman must be recognized same rights in same situations (m w juridically subsitutable) But: in certain situations male and female roles are non-substitutable requiring differentiated rights Sexuality consitutes manliness and femaleness permitting their ontological idenitifcation and determining their functions/roles

Law is called upon to protect specificity of sexual diversity in the relational balance (paying attention to distinct nature of two sexes) Affirmation of the principle of equality and claims of right to sexual differentiation demand the jurist’s effort in combining these demands with claims arising from practice keeping in mind original meaning of law

LGBTI claims Claim the annullment of the difference between m/w/i/ts/tg with respect to sexual identity(indifferently m/f/mf/fm/nm/nf) Claim annullment of differences between hetero-homo-bi-sexuals with respect to sexual orientation which can refer to same/different sex individuals

Discrimination LGBTI context LGBTI do not recognise their diversity Very fact of being considered different=discriminating Thus claim same rights of heterosexuals and cis- genders All individuals, regardless of their sexual identity or orientation must be treated in the same way excluding the question of justifiability of such claim.

Equality=indifference of differences Differences are irrelevant in order to accord juridical protection of diversity without producing inequalities

Discrimination not confused with distinction Discrimination: unequal treatment towards individuals putting them on unfavourable condition respect to others Racism/specism/sexism discrimination upon the fact that they are treated unequally upon the mere fact of belonging to different species or ethnic group On its own differentiated treatment does not constitute discrimination ; Discrimination when different treatment of some individual respect to other is not justified; Different juridical treatment of man and woman  Maternity leave is justified considering gestation condition.

International/national documents Gender identity/sexual orientation (subjective choices) put on same level of age,race,social condition and personal convictions (objective); Difference between subjective choices and objective conditions; can’t assimilate them Discrimination  treat different situations equally

Aggravating circumstance for homophobia and transphobia Currently draft bill in discussion at the italian Senate proposes to criminalize acts based on “homophobia and transphobia” as an aggravating statutory factor Arises socio-legal issues

in order to protect homosexuals and transsexuals the draft bill uses the legal tool of the so-called Mancino Law laying Urgent measures relating to racial, ethnic and religious discriminations, that is the Italian law that condemns gestures, actions and Nazi- fascist ideology directed to the incitement of violence and discrimination for racial, ethnic or religious reasons.

The ratio of the Mancino Law: 1) is to guarantee the peaceful coexistence between the groups divided by strong systems of thought. The protection of this interest limits justifiabily the freedom of demonstration of thought. Where as homophobia and transphobia are phenomena that don’t create a widespread hostility and persecutory climate that would justify a differentiated legal protection.

2)Sanction ethnic,ratial,politcal,religious hatred motivated by historical reasons  ethnocentrism, ratial,poltical,religious hierarchy is shared socially. Sexual orientation choices are subjective and don’t necessarily presuppose victim’s vulnerability (disabled individuals  objectively vulnerable

The offenses outlined in the bill under discussion configure homosexuality and transsexuality as collective value ​​to be protect beyond what the criminal system ensures to any ordinary citizen. Therefore, such protection could be invoked by any series of individuals on the basis of their personal circumstances

Discrimination among victims of violence homosexuals and transsexuals already enjoy legal instruments against any form of unjust discrimination, violence, offense to personal dignity under the Criminal Code foreseen for all citizens. Article 3 of the Italian Constitution reads that "All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. " Sex and personal conditions are therefore already covered by the Constitution as specific elements against which any form of discrimination are admitted.

Consequence  it would effectively entail unjustified favouritism among victims of violence, in breach of the principle of equality before the law Moreover  Art. 61 of the Italian Penal Code already recognizes 'abject and/or futile motives' as aggravating circumstances”

Claim of aggravating circumstance for homophobia and transphobia offences LGBTI fall into contradiction Ask for equality of treatment same as heterosexuals But ask different legal protection in case of homphobic or transphobic offences

1) intro of criminal aggravating circumstances for socially disapproved acts would constitute a moral prevention with the purpose of promoting social awareness towards certain choices Critic: Recourse to criminal law for so called moralization intentions is to be criticized because in a pluralist democracy  law does not concide with morals

Criminal sanction foresseen by legislator/applied by judge would express the gravitiy of the illicit fact Gravity/illicitness of fact deduced by punishment Punishment would take on moral and symbolic importance of representation of the value of certain assets

If objective is to educate to the interiorization of others sexual choices, prevention of offensive acts is another way to contemplate.

Another problem arises from the assimilation into the law of offences committed by reasons of sexual orientation and offences committed by reasons of ethnic group, race,nationality or religion,disbility,age and sex. Punishment of ethnic/ratial/relkigious/political hatred is foreseen for historical reasons

Punishment of hatred for objective conditions (characterized by the vulnerabilty of the individual)such as disability or age cannot be compared with subjective choices, like sexual orientation cjoices

Introduction of a criminal aggravation for acts against individuals in specific conditions expresses disparity of treatment with regards to further possible motivations leading to eqaully serious acts of hatred. By prohibiting discrimination of gender identity and sexual orientation the criminal aggravation could lead to intollerance towards anyone defending the relevance of nature for the law or the difference between man/woman

not possible to assess the real reason leading to the violence in the offender’s mind Consequence: Victim of presumed homophobic or transphobic offence would receive more favourable treatment compared to any victim of violence Principle of equality «cisgender or straightphobia»