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.
Discrimination based on sexual orientation and gender identity is banned in San Marino. In December 2017, the Parliament approved a budget law which includes provisions legally recognising same-sex marriages performed between foreigners in the country. Furthermore, in November 2018, the San Marino Grand 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 of marriage.
Legality of same-sex sexual activity
In September 2004, Article 274 of the Sammarinese Penal Code was repealed. Under this article, homosexual contacts could be punished with imprisonment from 3 months up to one year, if they had been engaged in "habitually" and thereby caused "public scandal".
The total ban on homosexuality was abolished in San Marino in 1864. In 1974, however, the Parliament of San Marino adopted a new penal code that came into force in 1975 and contained Article 274. There are no reports, however, that Article 274 was ever applied. It was the only special provision on homosexuality in the Sammarinese Penal Code.
The age of consent is equally set at 14. 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
On 15 November 2018, the San Marino Grand Council approved a bill to legalise civil unions in the microstate. 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.
In December 2017, the Sammarinese Parliament approved an amendment to the 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. Now, the Government has the task of drafting legislation to implement the amendment.
Discrimination protections and hate crime laws
On 28 April 2008, the Sammarinese Parliament approved amendments to the Penal Code, outlawing discrimination, hate crimes and hate speech on the basis of sexual orientation. The law took effect on 3 May 2008.
According to the 2015 U.S. State Department's "Human Rights Report", San Marino law prohibits discrimination on the basis of race, sex, religion, political opinion, national origin or citizenship, social origin, disability, sexual orientation or gender identity, age, language, HIV-positive status, or presence of other communicable diseases.
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. 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. 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. On 2 June 2019, voters approved the amendment, with 71,46% voting in favour.
Article 4 of the San Marino Constitution now reads as follows:
All are equal before the law, without distinction of sex, sexual orientation, personal, economic, social, political and religious conditions.
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.
Gay and bisexual men are allowed to donate blood in San Marino.
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, the Government rejected the proposition.
There are no reports of violence and hate crimes directed at the LGBT community in San Marino.