The Italian Constitutional Court’s Decision no 143 of 23 July 2024: Institutional Pathologisation Through the Prism of Binary Normativity

This article presents and criticises the Italian Constitutional Court’s judgment no 143 of 23 July 2024 dealing with the judicial requirements for legal gender recognition. The judgment has declared Art 31, para 4 of decreto legislativo no 150 of 2011 unconstitutional in that it subjects to judicial authorisation medical and surgical treatments aimed at modifying sex characteristics. We explain that the judicial authorisation for legal gender recognition still applies in practice. Against optimistic readings on the Court’s openness to non-binarism, we argue that in practice the decision is not revolutionary for the rights of trans people for at least two reasons. First, while the Court intervenes in procedural aspects of the legal gender recognition procedure, it maintains that seeking judicial authorisation for gender affirming surgical intervention is a requirement in line with Constitutional obligations. Second, it excludes that the registration of non-binary identities constitutes a state positive obligation, thereby reaffirming gender binary normativity via pathologisation of trans identities.