Times: Woman born a man insists on right to marry

http://www.timesofmalta.com/articles/view/20080730/local/woman-born-a-man-insists-on-right-to-marry
Wednesday, 30th July 2008; Claudia Calleja

A woman who was born a man but was legally declared female following gender reassignment surgery has taken her court battle for the right to marry a step further when she filed a constitutional application, yesterday.

"I'm still young and will keep fighting for the family life I always wanted... It is my right and if I don't get it from the Maltese courts, I'm ready to take my case to the European Court," Joanne Cassar, 26, said when contacted.

She filed the application in the First Hall of the Civil Court in its constitutional jurisdiction after a court revoked a previous ruling that had given her the green light to marry.

In the constitutional application, Ms Cassar explained that she was born a male in September 1981. Ever since she was a child she felt she was female. As she grew up older, she decided to undergo gender reassignment surgery to solve the internal conflict she had. After surgery, she filed an application calling on the courts to change the gender annotation on her birth certificate to female. In June 2006 the court upheld her request.

Ms Cassar said that subsequently she applied to the Marriage Registry to issue the wedding banns as she wanted to marry her partner. But the director of the Public Registry refused to issue the banns sparking off her legal battle for the right to marry.

Ms Cassar filed an application in the Civil Court demanding that the director of the Public Registry issues the banns and, on February 12, 2007, the court upheld her application and ordered the issue of the banns.

The director the Public Registry filed another application, also in the Civil Court, calling on the court to reverse the previous decision.

In a judgment handed down in May this year, the court ruled that, despite the fact that Ms Cassar was registered as a woman, it believed she was essentially still a man and the Marriage Act did not allow a union between two men. The court ruled that her gender had been changed on the birth certificate to safeguard her privacy and did not give her the rights of a "female" in light of the Marriage Act.

The court also ruled that the marriage of Ms Cassar to a man was in breach of the Marriage Act and so the court revoked the February 12, 2007 ruling saying it was based on an "unrealistic premise" as the parties were not of the opposite sex.

In her constitutional application, Ms Cassar argued that the law as interpreted by the Maltese courts went against a judgment handed down by the European Court of Human Rights. Quoting case law, she submitted that "there have been major social changes in the institution of marriage since the adoption of the (European) Convention as well as dramatic changes bought about by developments in medicine and science in the field of transsexuality..."

The condition of gender identity disorder, which Ms Cassar suffered from, has been accepted by medical authorities and one could not ignore the post-operative gender for the purposes of law.

Maltese law did not recognise her as belonging to the post-operative gender for all legal intents and purposes. This put her in the situation where she could neither marry a man nor a woman. This exposed her to degrading treatment and was in breach of her fundamental human right to marry.

She called on the court to provide her with legal remedies and declared that the director of the Public Registry could not refuse to issue the banns on grounds that she could not marry a man because she was born male.

Lawyers Josè Herrera and David Camilleri represented Ms Cassar.