Tuesday, 1st July 2008
Ivan Camilleri, Brussels
An EU agency has held that Maltese laws discriminate against lesbians, gays, bisexuals and transsexuals, and argues that Malta should start recognising same-sex marriages or partnerships contracted abroad.
The conclusion was reached in a legal analysis drawn up by the EU's newly set up Fundamental Rights Agency (FRA).
According to the FRA, Maltese law goes against the principle of equality in the Charter of Fundamental Rights by not allowing for the recognition of same-sex unions performed abroad.
The analysis was based on opinions by legal experts from the 27 member states. Prof. Ian Refalo was the Maltese representative.
The report, published yesterday in Brussels, analyses different aspects of equality rights based on sexual orientation in areas of EU competence.
According to the report, one of the areas in which Malta is most evidently lacking relates to free movement.
Under the Free Movement Directive, EU member states should ensure that spouses or partners of citizens of the Union, having exercised their free movement rights, are recognised as such even when they are same-sex spouses or partners. However, this is not the case in Malta.
The FRA states that Malta and another 10 EU member states appear to reject the recognition of same-sex marriages contracted abroad. It might, therefore, refuse to consider as a spouse, for the purposes of family reunification, the same-sex married partner of a citizen of the Union.
"This constitutes direct discrimination on grounds of sexual orientation, in violation of Article 26 of the International Covenant on Civil and Political Rights and of the general principle of equality, as reiterated in Article 21 of the Charter of Fundamental Rights," the report states.
FRA said that this legal situation in Malta results in a situation that restricts the freedom of movement of those of lesbian, gay, bisexual or transsexual orientation (LGBTs).
According to the EU agency, recognition should also apply for same-sex registered partnership or de facto same-sex partners, meaning a same sex couple with a common household or a durable relationship which is duly attested.
Maltese law is also deemed discriminatory where it comes to refugees.
Under the Family Reunification Directive, the spouse of a refugee should benefit from family reunification. According to the FRA, the same-sex spouse of the sponsor should be granted the same rights as would be granted to an opposite-sex spouse.
According to the report, in Maltese law, "the notion of spouse would probably not extend to same-sex spouses, even where the marriage has been validly concluded in a foreign jurisdiction.
"This constitutes direct discrimination on grounds of sexual orientation and cannot be justified."
The report finds other discriminatory aspects against LGBTs in Maltese legislation, such as where it comes to the implementation of the EU Employment Equality Directive and on legal measures for the protection of transgender persons.