LA DIMENSIONE COSTITUZIONALE DEL DIRITTO ALL¿ORIENTAMENTO SESSUALE

The doctoral dissertation, entitled La dimensione costituzionale del diritto all’orientamento sessuale, aims to reconstruct a right to sexual orientation within the Italian constitutional framework, moving beyond the traditional heterosexual paradigm. The approach adopted relies on an evolutionary and consistent reading of the constitutional text, intending to outline a right fully embedded in the Italian constitutional architecture. The first chapter retraces the history of homosexuality, highlighting how it has been perceived and regulated over the centuries. From Ancient Greece to the present day, homosexuality has been subjected to repression and silence, through alternating phases of tolerance, freedom, persecution, and marginalization. This trajectory was initially shaped by Christian morality, which established the heterosexuality/homosexuality dichotomy and relegated the latter to the realm of sin, and later, in the nineteenth century, by the process of pathologization, whose effects have had a lasting impact on the social and legal perception of homosexuality and on the configuration of LGBTQ+ rights. The second chapter examines the constitutional foundations of the protection of sexual orientation, focusing on the fundamental principles of the Italian Constitution, such as the primacy of the individual, equality, and non-discrimination. The aim is to demonstrate how these principles can provide a solid basis for the recognition of the right to sexual orientation, not as a newly created right, but as an implicit one that may emerge from the constitutional order. The chapter also considers the role of dialogue with supranational sources – most notably the European Convention on Human Rights – in affirming legal protection for sexual orientation. The third chapter investigates the individual dimension of the right to sexual orientation, addressing crucial issues such as the right to health, freedom of expression, and the right to asylum for LGBTQ+ persons facing persecution. Despite legal and normative advances, the research highlights the persistence of discrimination, stigmatization, and marginalization, still influenced by the legacy of pathologization. The following chapter addresses the relational dimension of the right to sexual orientation, focusing on the rights to marriage and parenthood for same-sex couples. While certain jurisprudential developments and limited legislative progress can be observed, the heterosexual paradigm continues to prevail, perpetuating inequalities and limiting the recognition of same-sex and rainbow families. The fifth chapter turns to the collective dimension of sexual orientation, centering on the representation of the LGBTQ+ community in the public and legal spheres. The community should not be regarded as a “traditional” minority, but rather as a vulnerable group which, while characterized by a plurality of identities and orientations, shares a common history of oppression and discrimination. The research analyzes the forms of social and legal representation of the LGBTQ+ community, highlighting the fundamental role of legal and political language in processes of recognition. Ultimately, the dissertation demonstrates that the full protection of the right to sexual orientation constitutes an essential component of the constitutional project of a society committed to guaranteeing the development of personality and the dignity of every individual. The failure to recognize the rights of LGBTQ+ persons not only violates the principle of equality but also signals a broader deterioration of democracy and of the State’s capacity to ensure the inclusion of all its citizens.