Gender, Equality and nondiscrimination
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 cisgenders
•
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 Nazifascist 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»