“The culture of diversity is a professional duty, not an ideological possibility”. The speaker is Elisabetta Tarquini, Councilor at the Working Section of the Court of Appeal in Florence and a member of the Tuscan Secretariat for the Democratic Judiciary, who in recent days has published a document on the case of Cloe Bianco. A document defining the left’s flow of clothes defines the decision by which Judge Luigi Perina dismissed the professor’s complaint about the three-day suspension imposed on her by the school for presenting herself in the courtroom with women’s clothing “legally wrong”. “There is no obligation for a ‘decent’ transition,” Md warned.
Someone accuses you of wanting to try Luigi Perina for the decision that somehow marked the beginning of Chloe’s drama.
We have no intentions of prosecuting individuals or stigmatizing individual decisions. And it’s not a formal position, because all of us judges make difficult decisions, very quickly, on often new issues. It is important to emphasize one fact, namely that the decision dates back to October 2016: EU law was far ahead of national law on the objective concept of non-discrimination. Therefore, it is not necessary to establish the will to discriminate, it is the discriminatory effect that is prohibited. This opinion, which is central to the internal system, was approved by the Cassation in a precise manner only a few months before that decision (United Civil Sections 7951/2016, ed.).
What is the meaning of the MD document?
To call all of us legal practitioners to this culture of diversity – which was less prevalent then than now, and which should be increasingly so – as our professional duty, not as an ideological possibility. In our note, we refer to legal rules, which must be part of our common knowledge.
The judgments cited are the 1996 judgment and the 2017 Constitutional Court, on the basis of which Perina is defined as a “legally incorrect” decision. What do these decisions tell us? Il Giornale, for example, criticizes your document by claiming that according to the same decision by Consulta, “the voluntary element alone” is not enough to change gender.
Md took a stand on a specific fact: Professor Bianco had been sentenced to a disciplinary sanction because she had presented herself to the class wearing women’s clothing when she intended to manifest her gender identity. The judge did not question the identity choice of the person who made his feelings. The voluntary element has nothing to do with it, so much so that the judge does not comment on it: Here we discuss the fact that a manifestation of a deep identity in itself can constitute a breach of contract. What is different are the conditions that a transgender person can get, for example, gender reassignment in identity documents. In that case, the choice of legal systems is very different: in France, for example. sufficient with the person’s self-determination, in our legal system, on the other hand, a number of physical changes are currently required, which both with regard to The Council and the ECHR may not necessarily consist of operations that cause lasting damage to physical integrity. What the Court’s judgment protects – from the outset – is the transgender person’s right not to be discriminated against from the beginning of his or her path, which in the initial phase is a way of representing oneself externally, as he is at ‘inner’. Another question is whether this identity is so formally registered by the judicial system.
The judge argued that there is an opposing and protective interest of society in interfering in the manifestations of this identity.
That is the confirmation we are against: in our opinion, this interest does not exist. It is not actually said what it is based on. In this way, persons belonging to a minority receive substantial apparent protection because I am told that my right to identity must be exercised in ways that are “appropriate” to the community. I’m curious to know how it would have been appropriate for society to represent itself. The Constitutional Court states that the duties of solidarity are not incumbent on the different person in relation to the community, but the duty of the community in relation to the different person. And I think that’s a beautiful pronunciation.
In your document, you also indicate the legal system among the “responsible”. How can it adapt to a constantly evolving value system? Sometimes it is not enough to establish the principle.
Sometimes society is much faster than what we register in the courtrooms. Lawyers themselves are part of the discriminatory community: the more a particular stereotype is ingrained, the more prevalent it is. Judges are in principle no strangers to it, so we have to make an effort on ourselves. Our position, from this point of view, is difficult, and must be revised every day, so I repeat that there is not a criticism of the person, but a self-criticism: we must always be vigilant about it. On the other hand, the law helps to make visible what is acceptable to the judicial system and to represent what is not acceptable. In that sense, it plays a major role, perhaps it should more often represent changes that probably already exist in society.
This attitude was a new opportunity to accuse you of being politicized. How do you respond?
I do not understand where the politicization lies in saying that a decision has no legal basis. The solution we have been talking about is based on norms. Il Giornale speaks in relation to Perina’s statement about a principle of “common sense”. But I do not understand that common sense is usually a decision criterion. And I would be interested in understanding what would be the party-political rule that should be adopted: it does not exist there. However, there is a presumed majority adherence to a certain value scale, and that is the real politicization.
What could be done to deprive courts of prejudice?
Form us. And I’m talking about an out-of-court education because some issues, such as those about gender, require non-legal knowledge. Moreover, we must lay a very strong critique of ourselves: it is because of the power we exercise over human lives.