From Rome to Valletta: Judging by Custom, Not Law

I am sharing this video of the editor of the Italian newspaper Il Tempo. In the video, the editor reflects on a recent situation in Italy in which a judge authorised a 13-year-old to change sex and, in other cases, to undergo medical procedures aimed at transitioning from one gender to another. The justification offered by the court is that the minor has a right to decide on their sexual identity.

Up to this point, one may or may not agree, but the legal reasoning becomes problematic once its broader implications are considered. While children are now being granted the legal right to redefine their sexual identity, any adult who engages in sexual relations with a minor is, rightly, subject to severe criminal penalties. This creates an apparent legal contradiction: if a child is deemed capable of making such profound and irreversible decisions regarding sex and identity, why is that same child considered incapable of consenting to sexual relations with an adult?

Of course, no one is suggesting that minors should have such a right. The point is that the legal logic collapses under its own weight. The editor concludes that in Italy, judges are no longer adjudicating strictly according to law or objective moral principles, but rather according to consuetudine — prevailing social custom.

I would add that this same phenomenon is evident in Malta as well. Certain magistrates and judges appear to rule not based on equality before the law, but according to political or ideological affiliation. If one belongs to the Repubblika milieu, one can insult others and label them mafiosi with impunity. Yet if the same accusation is directed back at them, it suddenly becomes a criminal offence. These are the very judges who receive promotion and institutional backing.

Likewise, if you are a “Repubblika” citizen, you may occupy a national monument and face no consequences. If you are not part of that group and engage in similar conduct, you are treated as a major criminal.

These are the individuals who enjoy the protection and support of ambassadors in Malta and across the European Union. This is precisely the argument the editor is making — and he is entirely correct. The trajectory of how sexuality is being treated legally and culturally in Europe has become deeply irrational.

The French philosopher Michel Foucault argued that sexuality is fundamentally a form of power. What we are witnessing today in debates over human sexuality, and in the way courts increasingly reason and adjudicate on these matters, is not confined to this field alone. It is being reflected more broadly across other areas of jurisprudence.

I invite you to listen to the video below with this perspective in mind.