In Italy, we have been discussing for months the so-called “ZAN bill”, which aims to fight discrimination and violence based on sex, gender, sexual orientation, gender identity and disability, and could be approved in the coming weeks. In a note In the run-up to World Pride 2021 this bill has received the approval of the Commissioner for Human Rights of the Council of Europe Dunja Mijatovic.
Despite the declared good intentions of this law proposal, this has been received with a lot of suspicions by an important sector of the civil society and some Italian jurists- including Flik, Ronco, Vari and Gambino- have pointed some serious inconsistencies,
Some of the controversies of the law concern the vagueness and ideological oriented terminology and the potential use of severe sanctions – such as compulsory re-education in LGBTIQ+ associations, wiretapping, passport withdrawal and up to 6 years of imprisonment – for the implementation of this law. In this regard, civil society members have warned that this law seriously jeopardizes the freedom of expression and thought of both individuals and associations. Furthermore, this law dangerously widens judicial discretion on legitimate opinions and encourages the practice of denunciation as a tool to oppose different thinking on many topics, from family to sexuality.
According to its supporters, the law should be approved because of a rising social emergency and a regulatory vacuum on LGBTIQ+ discrimination. Nevertheless, according to civil society organisations only a small percentage of the reports related to hate crimes filed in Italy in recent years are concerning sexual orientation, according to official data from Oscad, the Observatory of the Ministry of the Interior. Moreover, Italian law already sanctions all forms of offense and violence against any individual, with aggravating circumstances for offenses related to the victim’s sexual orientation.
One of the biggest concerns on the new law proposal concerns the limitation of freedom of thought and freedom in the field of education. This law would in fact seek to introduce in all public-run schools and private schools of all kinds and levels, compulsory activities on non-consensual subjects – from transsexuality to bi-phobia – that are based on the controversial concept of gender identity and highly divisive and that can be frontally opposed with the worldview of many families and schools.
The restriction of freedom of thought would have negative effects in terms of:
- Limitation to the educational freedom of parents (who in expressing opposition to certain teachings or activities could be considered «homophobic»),
- Limitation to the freedom of teaching (teachers would be forced to participate in activities made compulsory even if they do not share the messages transmitted to students, and if they express opposing views to gender theory they could be accused of discrimination, with legal and professional consequences. This could be contrary to the freedom of teaching recognized in the Italian Constitution.
- Serious impairment of minors’ education (as they would be deprived of an open and pluralistic environment and this would severely limit their ability to criticize and compare opinions).
Another critic of people opposed to this initiative is the narrow scope of this law. Because although the title of the law refers to handicapped people, the further development of the article only focuses on sexual orientation and gender identity, not justifying this narrow conception of discrimination.
The involvement of schools – children, adolescents and teachers – envisaged by the “ZAN Law” therefore clearly violates the division of competencies between school and family. This law breaks the consensus between the state, parents and children which enable a framework of trust for the upbringing of children.
Parents have recognized as a pillar for the education of the children. Article 30 of the Italian Constitution warns “It is the duty and right of parents to support, raise and educate their children, even if born out of wedlock”. Moreover, the article 26.3 of the Universal Declaration of Human Rights, the article 13.3 of the International Covenant on Economic, Social and Cultural Rights and the Art. 14 of First Additional Protocol to the European Convention on Human Rights also recognize the role of parents as a cornerstone with rights of the realization of the right to education.
Public-run schools, in order to be truly open to all, must be a welcoming community and promote participation, respect and confrontation, in order to create an environment where we can understand the value of sharing and peaceful coexistence. In this regard, the introduction of mandatory holistic and comprehensive worldviews can alter the openness of this institution, as well as to exclude de facto the participation of different families and communities. Article 34 of the Italian Constitution warns that “Schools are open to everyone”, this new law could compromise the school – family alliance.
Schools cannot provide personalised courses for each student. Therefore, to guarantee the interest and dignity of each child, it must propose a balanced educational offer that meets the educational needs of all without excluding anyone, even indirectly. For this reason, for example, students must learn to respect fundamental human rights but must not be oriented towards one political party rather than another.
The promoters of this law point that this is motivated to prevent bullying linked to sexual orientations. Nevertheless, to the opponents of this law, there are more effective methods to achieve this goal than imposing non-consensual education. Indeed, fighting bullying certainly does not require the introduction of divisive and controversial teachings on sexuality, but rather teaching respect for all people because of their human dignity.
The European trends in this regard have reached other paths. In this regard, Resolution nr. 1904 of the Parliamentary Assembly of the European Parliament dated 4 October 2012 states that «In order to guarantee the fundamental right to education, every education system must ensure equal opportunities and provide high-quality education for all pupils, seeking to transmit not only the knowledge required to enable them to find employment and play a full part in society, but also the values nurturing the protection and promotion of fundamental rights, democratic citizenship and social cohesion». The Parliamentary Assembly, in the same Resolution, also stated that «It is on the basis of the right to education as explained above that the right to freedom of choice in education should be understood.» Therefore states must «respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions».
Chiara Iannarelli- President of “Articolo 26”, Italy
Thanks to the lawyer Daniela Bianchini, member of the Livatino Center for Legal Studies