A pochi giorni dal deposito del testo base unificato della legge in materia di prevenzione e contrasto alle discriminazioni e violenze da orientamento sessuale, identità di genere e genere, di cui è relatore alla Camera il deputato Alessandro Zan (Pd), abbiamo raggiunto Angelo Schillaci, professore associato di Diritto pubblico comparato dell’Università di Roma “Sapienza”, per fare il punto della situazione.
Prof. Schillaci, perché è necessaria, secondo lei, una legge contro l’omotransfobia?
Le ragioni sono molte. Ci sono ragioni sociali e politiche, che nascono dal moltiplicarsi di episodi di discriminazione e violenza ai danni delle persone Lgbt+ nel nostro paese: negli ultimi anni abbiamo assistito all’emersione di un fenomeno troppo a lungo sommerso. Via via che la visibilità delle persone Lgbt+ è aumentata, sono aumentate le violenze; ma anche – e aggiungo, fortunatamente – il coraggio di denunciarle e l’indignazione da parte di una parte sempre più ampia del paese. Ci sono poi ragioni culturali: una buona legge contro misoginia e omotransfobia può favorire processi culturali funzionali alla prevenzione della discriminazione e della violenza e dare forza a quella parte di paese che si rifiuta di accettare un clima di esclusione e intolleranza verso ogni identità “differente”.
E dal punto di vista giuridico?
Dal punto di vista giuridico, va ricordato che l’Italia è uno degli ultimi Stati membri dell’Ue che non si è dotato di una normativa di contrasto dell’odio e della violenza misogina e omotransfobica, come ha dimostrato – da ultimo – la Rainbow Map 2020 di Ilga Europe. Anche l’Alta Commissaria per i diritti umani dell’Onu, Michelle Bachelet, ci ha recentemente sollecitato in questo senso. Aggiungo poi che il riconoscimento del genere, dell’orientamento sessuale e dell’identità di genere come dimensioni della personalità meritevoli di tutela è dato consolidato nella giurisprudenza interna e sovranazionale: dunque, una legge contro l’omotransfobia e la misoginia andrebbe ad aggiungere un tassello importante e necessario alle politiche per l’uguaglianza nel nostro paese.
Lei cosa risponderebbe alle obiezioni dei gruppi di destra e della Cei a una legge che introdurrebbe il reato di opinione?
Che non hanno fondamento giuridico. Tutte le proposte di legge abbinate – e il testo unificato – non estendono la fattispecie di propaganda di idee punita dalla cd. legge Mancino, ma solo l’istigazione alla discriminazione e alla violenza. La giurisprudenza ha chiarito da tempo che i reati di istigazione sono compatibili con la libertà di manifestazione del pensiero, affermando che sono punibili solo le espressioni che determinino il concreto pericolo del compimento di reati. In un ordinamento democratico e pluralista, non viene punita qualunque opinione, ovviamente, ma solo quella capace di istigare alla discriminazione e alla violenza.
Identità di genere. Questa espressione a suo parere è giuridicamente corretta? Ed esprime al meglio la categoria vulnerabile delle persone trans?
Il concetto di “identità di genere” è ormai ampiamente consolidato nell’esperienza giuridica. La Corte europea dei diritti dell’uomo ne fa uso costantemente. Anche la Corte costituzionale italiana, fin dal 2015, ha riconosciuto il “diritto all’identità di genere quale elemento costitutivo del diritto all’identità personale, rientrante a pieno titolo nell’ambito dei diritti fondamentali della persona”. Rispetto agli altri termini proposti da coloro che criticano questa espressione – penso al termine “transfobia”, ma anche al termine “persone transessuali” – “identità di genere” descrive meglio, dal punto di vista giuridico, questa dimensione della personalità, rilevante e meritevole di protezione: e lo fa, peraltro, in modo preciso e non discriminatorio. Preciso, perché – giuridicamente parlando – transfobia e persone transessuali non sono concetti definiti. E non discriminatorio, perché l’identità di genere è riconosciuta in tutte le sue articolazioni (ad esempio, e semplificando, identità cis,–trans-, e non binarie). Ed essere precisi e non discriminatori è doveroso quando si interviene su norme penali.
Se dovesse fare una valutazione sulla base dei testi depositati e delle indiscrezioni giornalistiche sul testo unificato, cosa direbbe?
Mi pare che la bozza di testo unificato circolata in questi giorni dia risposta a molte delle preoccupazioni di cui abbiamo discusso finora. Secondo me, è importante sottolineare soprattutto due aspetti. Primo: l’inclusione del “genere” tra le ragioni di discriminazione e violenza punite dalla norma penale. La legge, se approvata, non sarà dunque solo una legge contro l’omotransfobia, ma anche una legge contro la misoginia. Secondo: il testo unificato affronta il tema in modo complessivo e integrato. Non si limita cioè al solo intervento sul codice penale, ma disciplina politiche di prevenzione e supporto delle vittime: dalla copertura legislativa della strategia Lgbt dell’Unar al finanziamento di centri contro le discriminazioni e case rifugio, fino all’istituzione, il 17 maggio, della giornata contro l’omolesbobitransfobia. Non solo repressione penale, dunque, ma anche promozione del rispetto e dell’inclusione, pienamente in linea con l’articolo 3 della Costituzione.
Siamo già entrati nella fase calda del dibattito politico. Quali sono, a suo parere, i suggerimenti per una buona lettura e corretta comprensione della legge?
Non si tratta di una legge facile da raccontare, soprattutto ai non giuristi. Allo stesso tempo, il cuore del conflitto risiede, secondo me, nell’opposizione violenta – da parte di alcuni settori – al riconoscimento dell’orientamento sessuale e dell’identità di genere quali dimensioni della personalità meritevoli di riconoscimento e protezione giuridica. Questo è il punto, al di là delle strumentalizzazioni. La vera posta in gioco è l’allargamento dei confini della cittadinanza, l’inclusione delle persone Lgbt+. Per questo, penso che la chiave più efficace per raccontare la necessità di questa legge siano, ancora una volta, le storie. Raccontare e raccontarsi, per affermare la propria esistenza e rivendicare pari dignità sociale.
Ordunque questa legge punirà anche l’eterofobia, la cisgender fobia e la misandria?
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