Reinforcing the binary and disciplining the subject: The constitutional right to gender recognition in the Italian case law

Abstract

Abstract The article addresses the reasons why the Italian Constitutional Court requires trans people to transform their physical, psychological, and behavioral characteristics in order to obtain the legal recognition of their gender identity. It discusses how such a doctrine is implemented. Examining the case law of the Constitutional Court and of the Court of Cassation in light of queer theory, the article argues that such requirements are intended to benefit the “certainty of legal relations,” which, in this context, is inextricably tied to the preservation of the heterosexual matrix of family law. Developing a Foucauldian analysis of a consistent sample of decisions by courts of first instance, the article reasons that the application of such requirements amounts to the exercise of disciplinary power, which defines and regulates binary gendered subjects. By focusing on the underexplored doctrine of the Italian Constitutional Court on gender recognition, the article offers a case study which innovatively contributes to the bourgeoning debate on the right to gender recognition.