31st May 2008, Claudia Calleja
A woman who was born a man but was legally declared female following gender reassignment surgery is determined to keep on fighting for her right to a married life after a court revoked a ruling that had given her the green light to wedlock.
Speaking to The Times, the woman - who insisted on describing herself as a person with gender identity disorder rather than a transsexual as labelled by the court - expressed her disappointment at the ruling.
"One court allowed me to get married but another took it away from me," she said, insisting she will pursue the legal battle to marriage. On February 12, 2007, Mr Justice Gino Camilleri, sitting in the Civil Court, ordered the director of Public Registry to issue the marriage banns for the woman after noting that the union between her - who had been recognised as a woman on her birth certificate - and her male partner did not contravene any provision of the Marriage Act.
On February 28, the director of Public Registry, in his capacity as Registrar of Marriages, filed an application, also in the Civil Court, requesting the reversal of the court decree permitting marriage banns to be issued.
Earlier this month, Mr Justice Joseph R. Micallef noted that the Marriage Registrar had refused to issue the marriage banns because, despite the fact that she was registered as a woman, he believed she was essentially still a man and the Marriage Act did not allow a union between two men.
The court questioned whether, through such a decision, the Registrar was saying that the woman could not marry at all or that she could only marry a woman (since he considered her a man). It seemed that the Registrar's position was that a person who underwent gender reassignment surgery could not get married to a man or a woman, the court noted.
Mr Justice Micallef observed that the European Court of Human Rights has delivered various judgments suggesting that the European Court separated the fundamental right of marriage from the right to a family. However, the court left it up to the individual countries to
determine issues of legal recognition. The judge noted that Maltese law allowed a marriage to take place between a man and a woman.
The difficulty lay in that Maltese law did not define what makes a person a man or a woman. The evidence of various independent medical experts showed that the sex of a person was determined by the genetic, anatomical and psychological make-up. On hearing the evidence and
exploring various definitions of sexuality, the court ruled that the woman will never be considered to be a "woman" according to the relevant law, that is, the Marriage Act.
The court, therefore, upheld the requests of the Marriage Registrar and declared that the change in the woman's birth certificate, allowing a change of name and gender, was only intended to protect the right to privacy and to avoid embarrassment.
The court also ruled that the marriage of the woman in question to a man was in breach of the Marriage Act and revoked the February 12, 2007, ruling saying it was based on an "unrealistic premise" as the parties were not of the opposite sex.
Lawyers Josè Herrera and David Camilleri represented the woman.
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