Papers by Nausica Palazzo
Queer and Religious Alliances in Family Law Politics and Beyond
GenIUS, n. 1, 2021
The present paper seeks to critically assess the contemporary approach to legal gender recognitio... more The present paper seeks to critically assess the contemporary approach to legal gender recognition. The trans community is insufficiently protected by the law: too often policymakers are unaware or willingly ignoring the cost that categorizations reflecting static – as opposed to fluid –, singular – as opposed to multiple – identities impose on group “outsiders”. A similar approach has resulted in the establishment of a plethora of conditions to obtain legal gender recognition. On careful examination, these conditions hardly withstand scrutiny. A major example concerns practices involving sterilization o sex reassignment procedures: such practices yield a profound impact on human bodies. Such an impact should more correctly be framed in terms of ‘punishment’ for having trespassed the boundaries between genders, as well as a wall to prevent that person from making her choice reversible.
Based on this premise, the paper first explores the topic of legal categorizations through the lens of queer theory; it then moves to analyze the cost insufficiently inclusive categories impose on group outsiders unable to align with the dominant understanding of identity underlying a certain category; it then takes the European Convention of Human Rights as a case study to demonstrate how this approach is detrimental to the trans community, and particularly to individuals unwilling to undergo gender reassignment procedures; section 4 explicates the many advantages of an approach to legal gender recognition based on self-determination. Ultimately, section 5 takes stock of the discussion and moves to rewrite a passage in the Hämäläinen decision, to illustrate how queer tenets can be effectively embedded into the law, without ‘queer’ implying a mere deconstruction of jurisgenerative processes.
Columbia Journal of Gender and Law, Vol. 42, No. 1, 2022
Same-sex marriage is now a reality across Western countries. While this was a positive achievemen... more Same-sex marriage is now a reality across Western countries. While this was a positive achievement for the LGBTQ community, some crucial questions remain unanswered. One of these questions concerns the future of registered partnerships, such as domestic partnerships or civil unions. After the legalization of same-sex marriage, most states are simply phasing such partnerships out.
I argue against this trend. Based on an original analysis of empirical data and case law, I contend that these partnerships retain value for non-traditional families. In fact, states must introduce registered partnerships open to couples regardless of gender, including adult friends and relatives. To support this argument, I present two analyses.
First, I survey empirical research showing that (1) less traditional families, including opposite-sex couples, are signing up for registered partnerships at increasingly high rates, where available; (2) interest in such partnerships is growing even among same-sex couples in countries where same-sex marriage has existed for a long time.
Second, I outline the legal and theoretical justifications for extending same-sex legal partnerships to all couples. To this end, I analyze recent strategic litigation in Europe initiated by heterosexual couples who sought access to registered partnerships reserved for same-sex couples. The analysis allows me to identify three approaches: a status recognition approach, a utilitarian approach, and a choice-based approach.
Ultimately, I offer guidance to groups willing to engage in legal mobilization and to policymakers in crafting a registered partnership that would be suitable for modern couples. Families that do not resemble the traditional marital family model continue to fly under the radar of the law. Resurrecting these laws can fix the problem of their legal invisibility.
Routledge Handbook of Illiberalism, 2021
Whatever, 2021
'What is family?' is an impossible question. Singular definitions in the legal realm are predomi... more 'What is family?' is an impossible question. Singular definitions in the legal realm are predominant in the West. Such definitions are no longer tenable. The concept of family has been put under strain by both empirical and normative evolutions concerning the ways in which we do family. ‘What is family?’, however, is also a necessary question. It is necessary for navigating an ocean of practices that can be frightful to many, due to the increasing blurring of categories and practices.
This themed section has a double-barreled ambition. It first wishes to
introduce queer families to the general public, especially in Italy, where
this law journal has its headquarters. The second aim is to offer reflections on the relationship between queer families and law by looking at topics as varied as polyamory, multi-parenting, non-conjugal families of relatives, and more generally all families that eschew the dominant paradigm.
The approach is comparative and interdisciplinary. The jurisdictions covered are Canada, Europe, the US, and Italy, while the disciplines with which law will seek to establish a dialogue span psychology, social movement theory, gender studies, and literature.
ICL Journal, 2021
Achieving a proper balance between enforcing the constitution and avoiding that the courts exerci... more Achieving a proper balance between enforcing the constitution and avoiding that the courts exercise a policy-making function that that is better left to legislatures is not without its difficulties. In the United States, this issue has gained substantially higher traction giving rise to intense activism talk. The relevant American literature has exerted a deep fascination abroad, also in the light of the current globalization of constitutional discourse. Yet, the article intends to advance two claims: first, it warns against an uncritical import of US-style notions of judicial activism to continental Europe; second, it argues that contemporary research on comparative judicial activism currently has low explanatory utility.
The first section takes a glimpse of the relevant US literature ‒ both legal and empirical ‒ to shed light on the multidimensional essence of the concept. Section 2 proceeds to articulate three sets of tentative reasons why activism talk should be ʻhandled with careʼ. These reasons pivot on considerations around structure, culture, and type of decisions in continental Europe.
After parsing out each aspect, an argument is made that US-style judicial activism is too dependent on the US form of government; too divisive and as such unsuitable to the different European legal professional culture; and misleading, as the way European constitutional courts display activism in their decisions is distinctive. Ultimately, the article argues for the avoidance of US-style notions of judicial activism in European constitutional discourse.
Elsa Bernard, Marie Cresp, Marion Ho-Dac, La famille dans l’ordre juridique de l’Union européenne / Family within the Legal Order of the European Union (Larcier/Bruylant), 2020
The chapter illustrates that while substantive family law as a matter falls within the exclusive ... more The chapter illustrates that while substantive family law as a matter falls within the exclusive competence of Member States, the typical reasoning associated with marital status discrimination is emerging in the CJEU’s case law. Despite rarely mentioning marital status in its judgments, the Court has adopted lines of reasoning that could easily be associated with preventing that a family unit is being discriminated against because it is not founded on marriage.
Oñati Socio-Legal Series, 2020
This article intends to address the limits associated with a rigid grounds-based approach to equa... more This article intends to address the limits associated with a rigid grounds-based approach to equality, requiring claimants to categorize their identity within an enumerated ground to "deserve" the protection of the equality guarantee. To this end, I first shed light on the irreconcilability of rigid grounds with post-structuralist accounts of identity, and then lay claim to an approach to equality that extends its reach to fluid, intersectional groups. Thereafter, taking Canada as a case study, I parse out the Canadian equality jurisprudence, particularly the cases offering an analysis of the aforementioned grounds. I then move to sketch out two proposals to overcome the risks associated with the current equality jurisprudence, by focusing on marital status discrimination. I ultimately offer a cursory overview of the complex interplay between approaches to equality and the organization of interest groups, and illustrate the issues around the organization of "post-identity groups".
Michigan Journal of Gender and Law, 2018
This Article explores some of the legal initiatives and reforms that opponents of same-sex marria... more This Article explores some of the legal initiatives and reforms that opponents of same-sex marriage in Canada and the United States have pushed forward. Despite being animated by a desire to dilute the protections for same-sex couples, these reforms resulted in “queering” family law, in the sense that they functionalized the notion of family. Consequently, two cohabiting relatives or friends would be eligible for legal recognition, along with all the public and private benefits of such recognition. I term these kinds of “unions” and other nonnormative relationships to be “new families.”
The central claim of this Article is thus that new families should build alliances with conservative fringe groups and capitalize on their common interest in creating legal alternatives to marriage. Section I of the Article will provide a primer on the legal remedies available to non-normative relationships. Section II will engage in a comparative analysis of conservative reforms in the United States and Canada that ended up extending eligibility requirements to new families, or that, although currently restricted to conjugal couples, could constitute a viable model for protecting all new families, if their eligibility requirements were amended. Section III tries to operationalize legal recognition by analyzing the potential paths to gain it. I will first anticipate and respond to criticism surrounding recognition of new families, and then will lay the foundation for rethinking queer activists’ political action. I will then offer some recommendations (a) on the best model for implementation and (b) on forming alliances with conservative groups.
M. Florczak-Wątor (Ed.), The Law-Making Activity of Constitutional Courts, Routledge, 2020
Where the Italian Constitutional Court stands on the metric of power is not fixed. However, the a... more Where the Italian Constitutional Court stands on the metric of power is not fixed. However, the attitude of the Court has been marked, overall, by a readiness to intervene in the face of persisting legislative inertia. This chapter intends to demonstrate the various forms in which the Court exercises a law-making function.
Starting from the distinction amongst non-legislative, legislative, and co-legislative functions, the chapter first analyses how each category played out at the sub-constitutional level, and then at the constitutional level. It then moves to explore the shifting balance between activism and self-restraint the Court tried to reach in the sixty-five years of its functioning. The principal findings could be summarized as follows: there is a linear progression of the Court towards an expansion of its powers; the 70s mark the beginning of a phase of “politicization” of constitutional justice, especially driven by the creation of a sophisticated set of manipulative decisions whereby the Court amends the text of the law.
G.F. Ferrari (ed.), The American Presidency under Trump: The First two Years , 2019
GenIUS, 2016
Il saggio affronta il tema del transessualismo nei minori nella prospettiva del diritto costituz... more Il saggio affronta il tema del transessualismo nei minori nella prospettiva del diritto costituzionale degli Stati Uniti, con particolare attenzione al recente contenzioso tra gli Stati e il governo federale avente ad oggetto l'accesso ai servizi e alle attrezzature scolastiche. L'analisi si sviluppa in due direzioni: in primo luogo, la disciplina dei diritti del minore transessuale è inquadrata nell'ambito del riparto di compe-tenze tra Stati e Federazione e, parallelamente, della divisione dei poteri tra esecutivo e giudiziario. In secondo luogo, il saggio colloca il fenomeno del transessualismo nei minori nella prospettiva del costituzionalismo dei diritti, indagando gli argomenti sostanziali a supporto delle pretese di riconoscimento e tutela avanzate da coloro che esprimono un'identità di genere diversa dal sesso biologico di appartenenza.
Nomos, 2017
SOMMARIO 1. Introduzione. -2. La diffusione del delitto di negazionismo sul piano comparato. -3. ... more SOMMARIO 1. Introduzione. -2. La diffusione del delitto di negazionismo sul piano comparato. -3. La fattispecie di negazionismo in Italia. -4. La giuridificazione della storia e della storiografia. -5. Profili critici della sanzione penale: il giudizio di proporzionalità in senso lato. -5.1. La legittimità dei fini. -5.2. La connessione razionale tra i mezzi e i fini, le alternative alla sanzione penale e il giudizio di proporzionalità in senso stretto. -6. Alcune considerazioni conclusive.
GenIUS, 2016
La presente analisi si propone di studiare alcune esperienze referendarie intervenute in materia ... more La presente analisi si propone di studiare alcune esperienze referendarie intervenute in materia di diritti delle coppie dello stesso sesso e, in particolare, relative all'accesso all'istituto matrimoniale. Il campo di indagine è limitato a due aree geografiche nelle quali i referendum sono stati, di recente, frequente-mente impiegati: l'Europa (Croazia, Slovenia, Slovacchia, Irlanda, Svizzera nonché, brevemente, Lie-chtenstein) e gli Stati Uniti d'America. La disamina svolta circa le finalità dei referendum, le modalità di svolgimento, i dati relativi ai loro esiti e i limiti cui essi sono sottoposti, consentono una riflessione sulle problematiche e i rischi insiti nell'impiego di strumenti di democrazia diretta in ambiti di rilevanza dei diritti delle minoranze.
Books by Nausica Palazzo
Routledge, 2020
This book analyses the specificity of the law-making activity of European constitutional courts. ... more This book analyses the specificity of the law-making activity of European constitutional courts. The main hypothesis is that currently constitutional courts are positive legislators whose position in the system of State organs needs to be redefined. The book covers the analysis of the law-making activity of four constitutional courts in Western countries: Germany, Italy, Spain, and France; and six constitutional courts in Central-East European countries: Poland, Hungary, the Czech Republic, Slovak Republic, Latvia, and Bulgaria; as well as two international courts: the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). The work thus identifies the mutual interactions between national constitutional courts and international tribunals in terms of their law-making activity. The chosen countries include constitutional courts which have been recently captured by populist governments and subordinated to political powers. Therefore, one of the purposes of the book is to identify the change in the law-making activity of those courts and to compare it with the activity of constitutional courts from countries in which democracy is not viewed as being under threat. Written by national experts, each chapter addresses a series of set questions allowing accessible and meaningful comparison. The book will be a valuable resource for students, academics, and policy-makers working in the areas of constitutional law and politics.
This book argues that insufficient recognition of new families is a legal problem that needs fixi... more This book argues that insufficient recognition of new families is a legal problem that needs fixing in light of recent evolutions in family patterns and normative conceptions of 'family'. People increasingly invest in relationships falling outside the model of the marital family, such as non-conjugal unions of friends or relatives, polyamorous relationships and various religious-based families. Despite this, Western jurisdictions retain the marital family as the relevant basis for allocating family law benefits, rights and obligations.
Part I of the book illustrates recent evolutions in family patterns and norms, and explores how law can accommodate multiple family grids without legal recognition involving normalisation. Part II focuses on courtroom litigation on the basis that courts nowadays are central avenues of social change. It takes non-conjugal families as a case study and provides an analysis of the most compelling argumentative strategies that non-conjugal families can mobilise to pursue legal recognition in Canada and the United States, and within the systems of the European Convention of Human Rights and the European Union.
Through its comparative, interdisciplinary and critical legal method, the book provides scholars, activists and policymakers with conceptual tools to tackle the current invisibility of new families. Further, by advancing legal arguments to enhance the protection of non-conjugal families in courtrooms, the book illuminates the different approaches jurisdictions are likely to take and the hindrances thereof to overcome and debunk stereotypes associated with proper familyhood.
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Papers by Nausica Palazzo
Based on this premise, the paper first explores the topic of legal categorizations through the lens of queer theory; it then moves to analyze the cost insufficiently inclusive categories impose on group outsiders unable to align with the dominant understanding of identity underlying a certain category; it then takes the European Convention of Human Rights as a case study to demonstrate how this approach is detrimental to the trans community, and particularly to individuals unwilling to undergo gender reassignment procedures; section 4 explicates the many advantages of an approach to legal gender recognition based on self-determination. Ultimately, section 5 takes stock of the discussion and moves to rewrite a passage in the Hämäläinen decision, to illustrate how queer tenets can be effectively embedded into the law, without ‘queer’ implying a mere deconstruction of jurisgenerative processes.
I argue against this trend. Based on an original analysis of empirical data and case law, I contend that these partnerships retain value for non-traditional families. In fact, states must introduce registered partnerships open to couples regardless of gender, including adult friends and relatives. To support this argument, I present two analyses.
First, I survey empirical research showing that (1) less traditional families, including opposite-sex couples, are signing up for registered partnerships at increasingly high rates, where available; (2) interest in such partnerships is growing even among same-sex couples in countries where same-sex marriage has existed for a long time.
Second, I outline the legal and theoretical justifications for extending same-sex legal partnerships to all couples. To this end, I analyze recent strategic litigation in Europe initiated by heterosexual couples who sought access to registered partnerships reserved for same-sex couples. The analysis allows me to identify three approaches: a status recognition approach, a utilitarian approach, and a choice-based approach.
Ultimately, I offer guidance to groups willing to engage in legal mobilization and to policymakers in crafting a registered partnership that would be suitable for modern couples. Families that do not resemble the traditional marital family model continue to fly under the radar of the law. Resurrecting these laws can fix the problem of their legal invisibility.
This themed section has a double-barreled ambition. It first wishes to
introduce queer families to the general public, especially in Italy, where
this law journal has its headquarters. The second aim is to offer reflections on the relationship between queer families and law by looking at topics as varied as polyamory, multi-parenting, non-conjugal families of relatives, and more generally all families that eschew the dominant paradigm.
The approach is comparative and interdisciplinary. The jurisdictions covered are Canada, Europe, the US, and Italy, while the disciplines with which law will seek to establish a dialogue span psychology, social movement theory, gender studies, and literature.
The first section takes a glimpse of the relevant US literature ‒ both legal and empirical ‒ to shed light on the multidimensional essence of the concept. Section 2 proceeds to articulate three sets of tentative reasons why activism talk should be ʻhandled with careʼ. These reasons pivot on considerations around structure, culture, and type of decisions in continental Europe.
After parsing out each aspect, an argument is made that US-style judicial activism is too dependent on the US form of government; too divisive and as such unsuitable to the different European legal professional culture; and misleading, as the way European constitutional courts display activism in their decisions is distinctive. Ultimately, the article argues for the avoidance of US-style notions of judicial activism in European constitutional discourse.
The central claim of this Article is thus that new families should build alliances with conservative fringe groups and capitalize on their common interest in creating legal alternatives to marriage. Section I of the Article will provide a primer on the legal remedies available to non-normative relationships. Section II will engage in a comparative analysis of conservative reforms in the United States and Canada that ended up extending eligibility requirements to new families, or that, although currently restricted to conjugal couples, could constitute a viable model for protecting all new families, if their eligibility requirements were amended. Section III tries to operationalize legal recognition by analyzing the potential paths to gain it. I will first anticipate and respond to criticism surrounding recognition of new families, and then will lay the foundation for rethinking queer activists’ political action. I will then offer some recommendations (a) on the best model for implementation and (b) on forming alliances with conservative groups.
Starting from the distinction amongst non-legislative, legislative, and co-legislative functions, the chapter first analyses how each category played out at the sub-constitutional level, and then at the constitutional level. It then moves to explore the shifting balance between activism and self-restraint the Court tried to reach in the sixty-five years of its functioning. The principal findings could be summarized as follows: there is a linear progression of the Court towards an expansion of its powers; the 70s mark the beginning of a phase of “politicization” of constitutional justice, especially driven by the creation of a sophisticated set of manipulative decisions whereby the Court amends the text of the law.
Books by Nausica Palazzo
Part I of the book illustrates recent evolutions in family patterns and norms, and explores how law can accommodate multiple family grids without legal recognition involving normalisation. Part II focuses on courtroom litigation on the basis that courts nowadays are central avenues of social change. It takes non-conjugal families as a case study and provides an analysis of the most compelling argumentative strategies that non-conjugal families can mobilise to pursue legal recognition in Canada and the United States, and within the systems of the European Convention of Human Rights and the European Union.
Through its comparative, interdisciplinary and critical legal method, the book provides scholars, activists and policymakers with conceptual tools to tackle the current invisibility of new families. Further, by advancing legal arguments to enhance the protection of non-conjugal families in courtrooms, the book illuminates the different approaches jurisdictions are likely to take and the hindrances thereof to overcome and debunk stereotypes associated with proper familyhood.
Based on this premise, the paper first explores the topic of legal categorizations through the lens of queer theory; it then moves to analyze the cost insufficiently inclusive categories impose on group outsiders unable to align with the dominant understanding of identity underlying a certain category; it then takes the European Convention of Human Rights as a case study to demonstrate how this approach is detrimental to the trans community, and particularly to individuals unwilling to undergo gender reassignment procedures; section 4 explicates the many advantages of an approach to legal gender recognition based on self-determination. Ultimately, section 5 takes stock of the discussion and moves to rewrite a passage in the Hämäläinen decision, to illustrate how queer tenets can be effectively embedded into the law, without ‘queer’ implying a mere deconstruction of jurisgenerative processes.
I argue against this trend. Based on an original analysis of empirical data and case law, I contend that these partnerships retain value for non-traditional families. In fact, states must introduce registered partnerships open to couples regardless of gender, including adult friends and relatives. To support this argument, I present two analyses.
First, I survey empirical research showing that (1) less traditional families, including opposite-sex couples, are signing up for registered partnerships at increasingly high rates, where available; (2) interest in such partnerships is growing even among same-sex couples in countries where same-sex marriage has existed for a long time.
Second, I outline the legal and theoretical justifications for extending same-sex legal partnerships to all couples. To this end, I analyze recent strategic litigation in Europe initiated by heterosexual couples who sought access to registered partnerships reserved for same-sex couples. The analysis allows me to identify three approaches: a status recognition approach, a utilitarian approach, and a choice-based approach.
Ultimately, I offer guidance to groups willing to engage in legal mobilization and to policymakers in crafting a registered partnership that would be suitable for modern couples. Families that do not resemble the traditional marital family model continue to fly under the radar of the law. Resurrecting these laws can fix the problem of their legal invisibility.
This themed section has a double-barreled ambition. It first wishes to
introduce queer families to the general public, especially in Italy, where
this law journal has its headquarters. The second aim is to offer reflections on the relationship between queer families and law by looking at topics as varied as polyamory, multi-parenting, non-conjugal families of relatives, and more generally all families that eschew the dominant paradigm.
The approach is comparative and interdisciplinary. The jurisdictions covered are Canada, Europe, the US, and Italy, while the disciplines with which law will seek to establish a dialogue span psychology, social movement theory, gender studies, and literature.
The first section takes a glimpse of the relevant US literature ‒ both legal and empirical ‒ to shed light on the multidimensional essence of the concept. Section 2 proceeds to articulate three sets of tentative reasons why activism talk should be ʻhandled with careʼ. These reasons pivot on considerations around structure, culture, and type of decisions in continental Europe.
After parsing out each aspect, an argument is made that US-style judicial activism is too dependent on the US form of government; too divisive and as such unsuitable to the different European legal professional culture; and misleading, as the way European constitutional courts display activism in their decisions is distinctive. Ultimately, the article argues for the avoidance of US-style notions of judicial activism in European constitutional discourse.
The central claim of this Article is thus that new families should build alliances with conservative fringe groups and capitalize on their common interest in creating legal alternatives to marriage. Section I of the Article will provide a primer on the legal remedies available to non-normative relationships. Section II will engage in a comparative analysis of conservative reforms in the United States and Canada that ended up extending eligibility requirements to new families, or that, although currently restricted to conjugal couples, could constitute a viable model for protecting all new families, if their eligibility requirements were amended. Section III tries to operationalize legal recognition by analyzing the potential paths to gain it. I will first anticipate and respond to criticism surrounding recognition of new families, and then will lay the foundation for rethinking queer activists’ political action. I will then offer some recommendations (a) on the best model for implementation and (b) on forming alliances with conservative groups.
Starting from the distinction amongst non-legislative, legislative, and co-legislative functions, the chapter first analyses how each category played out at the sub-constitutional level, and then at the constitutional level. It then moves to explore the shifting balance between activism and self-restraint the Court tried to reach in the sixty-five years of its functioning. The principal findings could be summarized as follows: there is a linear progression of the Court towards an expansion of its powers; the 70s mark the beginning of a phase of “politicization” of constitutional justice, especially driven by the creation of a sophisticated set of manipulative decisions whereby the Court amends the text of the law.
Part I of the book illustrates recent evolutions in family patterns and norms, and explores how law can accommodate multiple family grids without legal recognition involving normalisation. Part II focuses on courtroom litigation on the basis that courts nowadays are central avenues of social change. It takes non-conjugal families as a case study and provides an analysis of the most compelling argumentative strategies that non-conjugal families can mobilise to pursue legal recognition in Canada and the United States, and within the systems of the European Convention of Human Rights and the European Union.
Through its comparative, interdisciplinary and critical legal method, the book provides scholars, activists and policymakers with conceptual tools to tackle the current invisibility of new families. Further, by advancing legal arguments to enhance the protection of non-conjugal families in courtrooms, the book illuminates the different approaches jurisdictions are likely to take and the hindrances thereof to overcome and debunk stereotypes associated with proper familyhood.