Distracted by the debate sparked by the words of rapper Fedez at the May Day Concert, the Zan law remains for many a distorted object. The confusion over its content is great and often leads off-road. Some statements from politicians and center-right exponents are pure and simple hoaxes: the cancellation of Christmas, access to the womb for rent, gender ideology in schools. Most of these fake news are intentional. The aim is to muddy the waters and poison the debate. But the truth of the facts on the object, that is, on the moon (the Zan law) and not the finger (Fedez), is precisely in the bill approved in the Chamber on November 4, 2020 and currently stopped in the justice committee. It is a 12-page document containing ten articles.
The law equates discrimination based on sexual orientation, gender identity, gender, sex, disability to racial, ethnic and religious. It intervenes on two points of the penal code and through an addition to the already existing Mancino-Reale law (of 1992), it aims to sanction violent gestures and actions. In addition to repressing misogynistic, homotransphobic and enabler hate crimes, it provides a series of positive actions that aim to prevent them. We have been talking about a law against homotransphobia in our country for exactly 25 years. Let’s analyze the most common fake news:
False. Today the Criminal Code does not affect conduct motivated by homotransphobia but one can only hope – where the law should give certainties, as far as possible – that the aggravating circumstance of “abject and futile reasons” will be challenged and applied. Which is not always the case. Furthermore, the crimes envisaged with general formulas take on a different and peculiar aspect from a criminological point of view when they affect a minority, coming to qualify as “hate crimes”. Article 3 of the Mancino-Reale law provides for crimes committed for ethnic, national, racial or religious hatred. The Zan law also extends these crimes to LGBT people, women and people with disabilities. The hate crime is aimed precisely at that individual and against his difference in order to cancel it. Slapping a person in the face of an argument is not the same as hitting a person for being Jewish. Precisely for this reason the application of the aggravating circumstance of “abject and futile reasons” is not considered sufficient: because in the case of hate crimes there is not only a reprehensible motivation but a different and further protected legal good. By striking a person as a minority, the offender has the effect that all people belonging to the minority (example: blacks, LGBTs, Jews, people with disabilities) feel threatened and fearful. The right to peace of mind, security, freedom of movement of several subjects comes into question. Precisely for this reason a reaction of the state is justified.
False. The Zan proposed law only punishes the instigation and the carrying out of discriminatory and violent acts. Article 4 of the proposed law clarifies that opinions which are not suitable for determining the concrete danger of committing discriminatory or violent acts are reserved.
It is true that the Zan law extends the Mancino-Reale law, but does not extend it to the crime of “propaganda of ideas based on ethnic and racial hatred” (art. 604 bis of the Criminal Code). Let’s take an example: the judge could apply the law. aggravating Zan to an association that by publishing a photo of a gay activist invites his followers to lynch him. Not to a citizen who can still freely say: “Homosexual people are sick”, “the rented uterus is an abomination”, “Same-sex marriage is wrong.” Legally, the fine line between determinacy and indeterminacy is respected, the one that characterizes the crime of defamation so to speak, and therefore reserves to anti-LGBT groups that freedom of thought also present in article 21 of our Constitution . Determining a subject, putting him on the index and inviting discrimination is a crime already widely condemned by the aforementioned crime of defamation. With the Zan law, it could become “aggravated” in the case of vulnerable subjects. ili like LGBT people, people with disabilities, women.
This is because the proposal on the various crimes, provided for by the same article 604 bis, of “incitement to commit discriminatory or violent acts” and on the “performance” of those same acts, extend to the case of conduct motivated by gender, sexual orientation, sex, disability and gender identity. The instigating conduct is that capable of determining the “concrete danger” of the performance of those acts. Therefore, not every opinion will be the subject of the criminal law, but only the instigating opinion which – by determining a concrete danger of carrying out discriminatory or violent acts – damages the personal identity of others, in relation to gender, sexual orientation or gender identity.
Our judges are particularly clear on this point: the right to express one’s thoughts is not absolute but can be limited to protect “the rights and freedoms of others”. In short, even in the case of political criticism – which even makes greater harshness in tone and words admissible – the limits of “truth” and “social interest” must be fully respected (as reported in articles 9 and 10 of the European Convention for the protection of human rights and fundamental freedoms of 4 November 1950).
The balance must therefore be made between the freedom to express one’s thoughts, on the one hand, and the need to guarantee respect for human dignity and equality of all citizens regardless of personal and social characteristics. A right balance between freedom and dignity, between freedom and person. In this sense, our judges explain, the rules on racial discrimination also constitute the application of the fundamental principle of equality (indicated in Article 3 of the Constitution), so that the sacrifice of the right to free expression of thought is amply justified.
In short, we can all express our opinion, provided that within the limits of respect for others and in compliance with a principle that should always inspire the political action of those in positions of power, the guide is in Article 3 of the Constitution which is a guarantee of protection from hate.
False. The Zan law provides for the National strategy activated by UNAR, the National Anti-Racial Discrimination Office of the Department for Equal Opportunities of the Presidency of the Council of Ministers. There are already anti-discrimination interventions in the areas of education and instruction, work, security and prisons. They often go by the name of “respect education courses”. The Zan law focuses on culture, the one that really serves to stem the phenomenon of homotransphobia. A work in synergy with anti-discrimination associations that has already been running for years. Arcigay, for example, in Siena, is organizing ‘Orientiamoci alle differences’, a training project for branch operators specialized in LGBT issues. But also ‘Prof Presente’ free course for teachers that offers tools to prevent or deal with homotransphobic bullying. No gender ideology, only respect education. The courses have already been recognized by high institutions for more than twenty years. In 2011, the President of the Republic Giorgio Napolitano awarded Arcigay-Trieste a bronze medal for the project “A School to get to know us”, carried out in Friuli-Venezia Giulia. After ten years of commitment against bullying, the junta led by Northern League player Massimiliano Fedriga has stopped the project.
False. Suffice it to say that among the personal characteristics that can determine hate speech and hate crimes in the Zan law, sex has been added alongside gender, to name this component of personal identity as well. The concept of gender identity is not abstract but already present in jurisprudence, it is found in the penitentiary system (article,. / A,). This is found in article 8 (,.). /, on the recognition of refugee status, on the notion of persecuted social group. More recently we can read the term “gender identity” in the Constitutional Court sentence no. 221/2015, in relation to law no. 164/1982, in the matter of rectification of the attribution of sex. And again also in international treaties (above all, the) or in the jurisprudence of the ‘. Gender identity is therefore not an invention of the Zan law proposal, but it is a concept widely present in our legal system. Its recognition refers to the “need for a rigorous assessment not only of the seriousness and uniqueness of the intent, but also of the objective transition of the gender identity that emerged in the path followed by the person concerned; path that corroborates and strengthens the intent thus manifested “(it is still the Constitutional Court, ruling no. 180/2017). The term is taken from the Zan law proposal to protect trans people subject to discriminatory and violent behavior based on hatred towards their personal condition. The definition of gender identity contained in Article 1 of the Zan law proposal is consistent with the notion of gender identity typical of the current legal system: in fact, we speak of: “perceived and manifested identification of oneself in relation to gender, even if it does not correspond to sex, regardless of having completed a transition path “. Often to this objection is added the one that the Zan law calling “gender identity” may allow transsexual, transgender and non-binary people to undermine the current system of registry sex rectification. It is not so. The Zan proposal concerns the fight against discrimination and violence, contains criminal provisions that must be formulated as precisely as possible and, above all, be suitable for targeting speeches and hate crimes where they occur, recognizing the specific reason why they manifest themselves. And gender identity is one of these reasons, transgender people are 70% of the people attacked.
The Zan law assimilates women to a minority to be protected, when they are the majority
False. The Zan proposed law does not protect minorities, but dimensions of personal identity, including sex and gender, with respect to discrimination, violence and hatred.
On the criminal level, it does not consider (or aggravate) crimes, on the basis of who is the victim: it affects the motive of hatred, and therefore the specific reasons for a conduct, due to the personal conditions of the victim.
False. The Zan proposal is already a law against the victims of heterophobia. That is, those straight men attacked by LGBT people (the chronicles are dry about these hate crimes but the objection comes from the Northern League leader Matteo Salvini). The Zan proposal protects victims for “sexual orientation” and this expression includes all orientations, including heterosexual.
False. The Zan law provides for the establishment of the world day against homotransphobia on May 17th. It has been celebrated around the world since 2004. May 17, 1990 was a turning point in the history of civilization: the World Health Organization, that is the body to which the international community entrusts the task of establishing key knowledge on the health of the population. planetary, removed homosexuality from the list of mental illnesses. In Italy, every year, the President of the Republic, the Prime Minister and the Presidents of the Chamber and Senate issue statements on the matter. The Zan law provides that, on the occasion of the World Day against Homotransphobia, schools organize awareness-raising activities to “combat prejudice, discrimination and violence motivated by sexual orientation and gender identity”. So prevent bullying and discrimination. It will not have a holiday character and the initiatives will take place respecting the school autonomy of educational co-responsibility with families.
False. This is an assault law. Furthermore, in Italy “gestation for others”, defined by others as “rented uterus”, is not legal.
Source: L'Espresso – News, inchieste e approfondimenti Espresso by espresso.repubblica.it.
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