Implicito ed esplicito nel rapporto circolare tra genere e diritto

The building of masculine and feminine is a social processing of the differences between the two sexes, also performed as a legal construction. The essay investigates how “law builds gender” as well as “gender builds law”. On the one hand, gender rules shape the law implicitly, as far as they are supposed or considered to be “natural”; on the other hand, when the “nature” appears not to work, statutes and court judgments are needed in order to create or to reinforce gender rules (gender rules are disclosed by the law). The issue is dealt with by means of three case studies: the judgments that denied women to vote in 1906; the development of the notion of the “unity of the family”, according to Art. 29 of the Italian Constitution and in special reference to the Constitutional Court rulings on adultery, between 1961 and 1969; the case of the continuation of the marriage after the gender reassignment of one of the spouses and the question on the constitutionality of the ex lege divorce imposed by law no. 164/1982, decided by the Constitutional Court in 2014.