LGBT rights in San Marino

Lesbian, gay, bisexual, and transgender (LGBT) persons in San Marino may face legal challenges not experienced by non-LGBT residents. Both male and female same-sex sexual activity are legal in San Marino, but households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex couples.

LGBT rights in San Marino
Location of San Marino (green) in Europe (dark grey)  –  [Legend]
Status	Legal since 1864 "Habitual" homosexual acts "causing a public scandal" illegal from 1970 to 2004
Military	LGBT people may serve
Discrimination protections	Protections for sexual orientation and gender identity
Family rights
Recognition of relationships	Unregistered cohabitation since 2012 (only for immigration purposes), Civil unions since 2019
Adoption	Stepchild adoption since 2019

Discrimination on account of sexual orientation is banned under the 2019 amendments to the Constitution of San Marino. In November 2018, the Grand and General Council approved a bill to legalise civil unions. The law, which took effect on 5 December 2018 and became fully operational on 11 February 2019, following a number of further legal and administrative changes, allows same-sex and opposite-sex couples to enter into a union and receive some of the rights and benefits of marriage.

Legality of same-sex sexual activity

Homosexuality was decriminalised in San Marino in 1864.

From 1975 to 2004, Article 274 of the Criminal Code prohibited homosexual acts if they had been engaged in "habitually" and thereby caused "public scandal". The punishment imprisonment for no less than three months and no more one year. There are no reports, however, that Article 274 was ever applied.^[1] It was the only special provision on homosexuality in the Sammarinese Penal Code.

Article 274 was eventually repealed in September 2004.

The age of consent is set at 14 for both opposite-sex and same-sex sexual acts. Additionally, it is an offence to "incite a minor under 18 years to sexual corruption".

Recognition of same-sex relationships

Main article: Recognition of same-sex unions in San Marino

Civil unions

On 15 November 2018, the San Marino Grand Council approved a bill to legalise civil unions in the microstate.^[2][3] The law, which came into effect on 5 December 2018, became fully operational on 11 February 2019, following a number of further legal and administrative changes. It allows same-sex and opposite-sex couples to enter into a union and receive certain legal rights with respect to residency, citizenship, pension rights, healthcare, succession rights, and stepchild adoption.^[4]

Same-sex marriage

In December 2017, the Sammarinese Parliament approved an amendment to a proposed 2018 budget law that would allow same-sex marriages of foreign couples to be performed in San Marino, with the aim of encouraging tourism. Sammarinese same-sex couples will still be banned from marrying. The government now has the task of drafting legislation to implement the amendment.^[5][6]

Discrimination protections and hate crime laws

On 28 April 2008, the Sammarinese Parliament approved amendments to the Penal Code, outlawing discrimination and hate speech on the basis of sexual orientation.^[7][8] The law took effect on 3 May 2008.^[9][7] The Penal Code also provides penalty enhancements to hate crimes motivated by the victim's sexual orientation.

In November 2018, during the final discussion of the civil union law, Deputy Davide Forcellini of the RETE Movement proposed to explicitly add the term sexual orientation to Article 4 of the Constitution.^[10] The proposal received support from the DM-SMT, the Party of Socialists and Democrats (PSD) and the Socialist Party (PS), as well as several independent deputies.^[11][12][13] In March 2019, the Parliament approved the proposal, 35 votes in favour, 8 against and 1 abstention. However, 39 votes were required. Due to failing to meet this threshold, the text was submitted to a referendum.^{[14][15][16][17]} On 2 June 2019, voters approved the amendment, with 71.46% voting in favour.^[18][19]

Article 4 of the San Marino Constitution now reads as follows:

• Tutti sono uguali davanti alla legge, senza distinzioni di sesso, orientamento sessuale, condizioni personali, economiche, sociali, politiche e religiose.
• All are equal before the law, without distinction of sex, sexual orientation, personal, economic, social, political and religious conditions.

In November 2019, during the country's Universal Periodic Review, San Marino accepted recommendations from Liechtenstein, Luxembourg and Mexico to outlaw discrimination on the basis of gender identity.^[20]

Military service

The Sammarinese Armed Forces does not explicitly ban LGBT people from serving. The code of conduct of the police force prohibits unfair discrimination in recruitment. Furthermore, police officials are trained to properly respond to and identify discrimination, whether in public or within the police force itself.^[21]

Blood donation

Gay and bisexual men are allowed to donate blood in San Marino.^[22][23]

Living conditions

Until recently LGBT people in San Marino went unnoticed, with very few public debates or discussions involving the issue of LGBT rights, either in the media, society in general or politics. When LGBT groups in San Marino asked the government to recognize 17 May as the International Day Against Homophobia, Transphobia and Biphobia in the early 2000s, their proposition was rejected.^[23]

The country's sex education programme, accompanied by emotional education programmes, expressly provide for knowledge of LGBT rights. The "Curriculum of education to citizenship" also provides for knowledge of LGBT matters.^[20]

There are occasionally reports of violence and hate crimes directed at the LGBT community in San Marino.^[24][23] In June 2019, the electorate voted with 71% to outlaw discrimination on the basis of sexual orientation.

Summary table

Same-sex sexual activity legal	(Since 1864)
Equal age of consent (14)	(Since 1864)
Anti-discrimination laws in employment	(Since 2008)
Anti-discrimination laws in the provision of goods and services	(Since 2008)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech)	(Since 2008)
All discrimination based on sexual orientation banned by constitution	(Since 2019)
Anti-discrimination laws concerning gender identity in all areas	(Since 2016)
Hate crime law includes sexual orientation	(Since 2008)
Same-sex marriage
Recognition of same-sex couples (e.g. civil unions)	(Since 2019)
Stepchild adoption by same-sex couples	(Since 2019)
Joint adoption by same-sex couples
LGBT people allowed to serve openly in the military
Right to change legal gender
Access to IVF for lesbian couples
Conversion therapy banned on minors
Commercial surrogacy for gay male couples
MSMs allowed to donate blood

See also

•  LGBT portal

• Politics of San Marino
• LGBT rights in Europe

References

1. . Archived from the original on 4 March 2016. Retrieved 29 April 2008.
2. "Approvata la legge sulle Unioni Civili. La commissione pari opportunità: "giornata storica per San Marino"". Rtv San Marino (in Italian). 16 November 2018.
3. . Gay Star News. 16 November 2018. Archived from the original on 15 May 2019. Retrieved 17 November 2018.
4. "Progetto di legge di iniziativa popolare "Regolamentazione delle Unioni Civili"". Consiglio Grande e Generale (in Italian).
5. "San Marino dice sì al matrimonio gay. Ma solo per gli stranieri". 21 December 2017.
6. "A San Marino arriva il matrimonio egualitario, ma solo per gli stranieri". Gay.it. 22 December 2017.
7. "LEGGE 28 APRILE 2008 N.66" (PDF).
8. "European Commission against Racism and Intolerance (ECRI) - Homepage". European Commission against Racism and Intolerance (ECRI).
9. "Rainbow Europe". rainbow-europe.org.
10. "San Marino approva legge sulle unioni civili: "Più snella rispetto alla Cirinnà"". euronews (in Italian). 16 November 2018.
11. . romagnanoi.it (in Italian). 16 November 2018. Archived from the original on 27 March 2019. Retrieved 21 November 2018.
12. "San Marino sì bipartisan alle unioni civili". Corriere Romagna (in Italian). 17 November 2018.
13. "Unioni Civili: l'entusiasmo esplode sui social. Comitato Promotore: "Festeggiamo ma resteremo vigili"". Rtv San Marino (in Italian). 16 November 2018.
14. "Consiglio: la Revisione Costituzionale non-ottiene la maggioranza qualificata. Ci sarà referendum confermativo". Rtv San Marino (in Italian). 20 March 2019.
15. "Consiglio, chiusura col botto: riferimento di Renzi sull'Europa e parola ai cittadini su modifiche all Carta dei Diritti". Rtv San Marino (in Italian). 20 March 2019.
16. . San Marino Fixing (in Italian). 21 March 2019. Archived from the original on 22 March 2019. Retrieved 23 March 2019.
17. "Una riflessione sul secondo quesito referendario". Libertas (in Italian). 16 May 2019.
18. Stefanello, Viola (4 June 2019). "San Marino bans discrimination based on sexual orientation". Euronews. Retrieved 4 June 2019.
19. Sarrubba, Stefania (4 June 2019). . Gay Star News. Archived from the original on 8 June 2019. Retrieved 4 June 2019.
20. "San Marino, UPR SOGIESC Recommendations" (PDF). ILGA Europe. 6 November 2019.
21. "Decreto Delegato 11 febbraio 2015 N.13 - Codice di condotta per gli appartenenti ai Corpi di Polizia - Consiglio Grande e Generale". consigliograndeegenerale.sm.
22. "Associazione Sammarinesi Volontari del Sangue e degli Organi Informazioni al donatore" (in Italian). Retrieved 7 February 2016.
23. "Study on Homophobia, Transphobia and Discrimination on Grounds of Sexual Orientation and Gender Identity Legal Report: San Marino" (PDF).
24. "San Marino. Scintille sulle Unioni civili". Giornale San Marino (in Italian). 3 June 2020.