In February and March 2021, the Court of Appeals of Milan handed down two decisions representative of the latest developments in the area of the rights of same-sex couples that also demonstrate the important role the judiciary plays in compensating for protection gaps and correcting application of the law that would otherwise lead to discriminatory results.
With ruling No 803 of 9 February 2021, the Court of Appeals of Milan determined that a biological father and his son had the right to receive the survivor’s pension of the child’s deceased intentional father under direct application of Article 2 of the Italian Constitution. Therefore, the court ordered the INPS (Istituto Nazionale della Previdenza Sociale), the entity that runs the Italian public retirement system, to pay the survivor’s pension because same-sex couples must receive the same treatment granted to straight married couples.
In the first instance, the Court of Milan issued an order ruling that the INPS was in compliance with the law in not recognising the right of the husband and child of the deceased intentional father to be paid the survivor’s pension. Specifically, the court of first instance held that at the time of the insured person’s death, the legal requirements for recognition of this right were not met and that, therefore, the conduct of the INPS could not be considered discriminatory.
The applicant and the deceased had a child in the United States through medically assisted procreation. However, the birth certificate transcribed in Italy in 2010 showed only the biological father (the applicant) as the parent. In 2016, a judgment was handed down by a US court recognising the paternity of the deceased, and that was added to the birth certificate in 2017. In 2013, the biological parent and the intended parent also married in the US, but that union was not transcribed in Italy until 2016, after the entry into force of Law No 76 of 2016, which recognises civil unions between same-sex couples.
The Court of Milan stated that the US judgment had a constitutive effect, so that before 2016 the intended father could not be recognised as such. According to the court of first instance, at the time of the intended parent’s death in 2015, in the eyes of the Italian state the intended parent was not married to the applicant, let alone the father of his child. Therefore, the survivor’s pension could not be paid to either the applicant or his son. In particular, given that the US court decision about the paternity of the deceased that rendered constitutive effect, as recognised by the Italian judge, and the civil union were not registered in Italy until 2016, the legal requirements that would have had to be met to have the right to payment of the pension were only met after the death of the insured.
The biological father challenged the ruling on several grounds, including the failure to recognise the discriminatory nature of the refusal to pay the pension.
The Court of Appeals referred extensively to Constitutional Court case law on the rights of same-sex couples developed before the entry into force of Law No 76. This case law shows that the fundamental right to live freely as a couple derives directly from Article 2 of the Italian Constitution. With respect to same-sex couples, this right implies the right to request the same treatment provided by law to married couples for protection in certain scenarios. This is intended to lend the partners in a same-sex union a degree of protection and safeguarding comparable to that enjoyed by a married couple in all cases where the law is absent or does not provide such treatment, leading to infringement of fundamental rights.
The Court of Appeals went on to say that the right to a survivor’s pension was part of the core group of rights/duties that make up assistance and solidarity for couples in affective relationships, as guaranteed by Article 2 of the Constitution. This category includes same-sex unions, understood as two persons of the same sex engaged in stable cohabitation. Therefore, since the same-sex couple was excluded from the institution of marriage, the surviving partner should have been granted the right to a survivor’s pension as a direct application of Article 2 of the Constitution.
The Court added that the minor child of the same-sex couple was necessarily part of the constitutionally protected stable affective relationship. Consequently, the parental status of the deceased can only begin with the birth of the child, there being no distinction in Italian law between the different forms of filiation in terms of rights. For that reason, the court also granted the appellant’s child the right to the survivor’s pension of the intended parent.
Also relevant in this case is (very recent) decision No 24694 of the Supreme Court of September 2021, which overturned a decision of the Court of Appeals of Milan that had granted the surviving partner of a de facto same-sex couple the right to a survivor’s pension when the relevant facts had occurred before the entry into force of Law No 76. The Supreme Court in that case excluded the idea that awarding the pension could be one of the specific cases in which a judge may intervene to ensure that same-sex couples receive treatment equal to that provided to married heterosexual couples. In fact, in the case at hand, the same rights were granted to de facto heterosexual and same-sex couples and there was, therefore, no need to provide more favorable treatment to same-sex couples.
With ruling No 453 of 17 March 2021, the Court of Appeals of Milan also confirmed that a working mother in a same-sex civil union had the right to parental leave without her employer having the right to challenge the status of a child resulting from registered civil status. Failure to grant such leave, even on a ‘preventive’ basis, is discriminatory, as it represents an unlawful difference in treatment.
A Milan-based company appealed an order issued by the Court of Milan (labour section) that charged it with discriminatory conduct towards an employee (mother of a child born to her partner through medically assisted procreation) for not having granted her parental leave.
To obtain parental leave, the employee had to produce documentation certifying her parental status, in this case the civil status certificate issued by the Municipality of Milan, which recognised the employee as an intended parent. Specifically, the court of first instance found that the employer discriminated against the same-sex parental couple by challenging the legality of the certificate, since the judge felt the employer would never have challenged the authenticity of such documentation had the couple been heterosexual. Discrimination was even more evident in light of the fact that, to spend time with her son, the employee had to request unpaid leave.
The company appealed, arguing that the certificate was unlawful since it granted parental status to the intentional and non-biological parental bond of the employee, whereas parental status should be reserved exclusively for biological parents.
The employee, on the other hand, filed an incidental appeal seeking a ruling on the existence of discriminatory conduct in relation to the prior programmatic refusal to grant sick leave for her to care for her son, as well as compensation for non-pecuniary damages, which, as noted, had been rejected by the court of first instance.
First of all, the Court of Appeals ruled that the employer was not entitled to challenge the legality of a family status certificate, since it was not among the parties empowered to challenge recognition of the child on the grounds of lack of truthfulness under Section 263 of the Italian Civil Code.
The Court also confirmed that in this case there was direct discrimination against the employee, as due to her sexual orientation she was treated less favourably than another person would have been treated in the same situation.
The Court also upheld the employee’s incidental appeal: in fact, according to the Court, the prior refusal to grant one month’s leave in the event of the child’s future illness constituted a deterrent to the employee making such a request in the future.
Finally, the Court also granted the request for compensation for non-pecuniary damages, stressing that in such cases payment not only compensated for the damage suffered but also served a punitive function aimed at deterring the reiteration of similar conduct. Contrary to what was stated by the court of first instance, in fact, the Court of Appeals pointed out that fundamental rights had been violated, including the right not to be subject to discrimination because of one’s sexual orientation and the right to the family, meant here as the right to engage in a parent-child relationship without hindrances.
The two Court of Appeals decisions pointed out that these cases deal not only with the rights of same-sex couples not to be subject to discrimination and to be treated in the same way as married couples, but also the rights of a minor child to have a stable personal relationship with both parents and to develop their identity without undue influence. These rights are expressly recognized by the UN Convention on the Rights of the Child of 20 November 1989, ratified in Italy by Law No 176 of 27 May 1991, which provides, in Article 3, that the best interests of the child must be the primary consideration in any decision.
Logic dictates that failure to grant parental leave and sick leave to either parent in a same-sex couple or the non-recognition in Italy of a filiation relationship that legally and peacefully exists might negatively affect a child’s psychophysical development.
For these reasons it is relevant that the Constitutional Court repeatedly confirmed the existence of the right to ‘family life’ for same-sex couples and, in particular, of a group of rights and duties of assistance and solidarity for the affective relations of a couple recognised by the Constitution, regardless of the model of union chosen by the legal system and regardless of the intervention of the legislature on the matter. These rights can be protected before a judge in ordinary court and such cases need not necessarily be referred to the Constitutional Court.