Malta Today: Joanne to go all the way in her fight to get married

http://www.maltatoday.com.mt/2008/10/22/t11.html
Wednesday, 22 October 2008; by Raphael Vassallo

Joanne Cassar will today present a Constitutional Court case against the government of Malta, after the Civil Court last May prevented her from marrying her male partner on the grounds that she was “still a man”, despite having undergone gender reassignment therapy.

Describing today’s proceedings as “the last stage before the European Court of Human Rights”, the Malta Gay Rights Movement has announced it will be collecting signatures outside the law courts in Valletta this morning in solidarity with Cassar.

“It takes a lot of courage to stand up for your rights, like Joanne is doing,” MGRM co-ordinator Gaby Calleja told MaltaToday. “Our initiative is more a show of support than anything else; we want her to know that she is not alone.”

The case goes back to 2006, when Cassar – who underwent a complex and expensive procedure to change her sex from male to female, and whose birth certificate has since been amended accordingly – was refused permission to marry on the basis that the Marriage Act prohibited unions between persons of the same gender.

Cassar took the Marriage Registrar to court, and on February 12 2007, after noting that the proposed union did not contravene any provision of the Marriage Act, Mr Justice Gino Camilleri upheld her request and ordered the director of Public Registry to issue the marriage banns.
But the marriage registrar appealed, and in his decision to overturn the ruling last May, Mr Justice Joseph R. Micallef observed that while the Marriage Act defined marriage as a union “between a man and a woman”, Maltese law offered no legal definition of either gender.
The court therefore took into account various definitions, including an affidavit signed by the former chairman of the parliamentary bio-ethics committee, Dr Michael Axiak, who wrote: “after gender reassignment therapy, a person will have remained of the same sex as before the operation.”

Mr Justice Micallef also noted that Cassar’s birth certificate, allowing a change of name and gender, was only intended to protect the right to privacy and to avoid embarrassment. He therefore upheld the marriage registrar’s request, and annulled the marriage banns.
Afterwards, Ms Cassar expressed bitter disappointment at the ruling. “One court allowed me to get married but another took it away from me,” she said.

The ruling nay have been a disappointment, but it came as no surprise to the MGRM’s Gabi Calleja, who confirmed that persons in Joanne Cassar’s predicament – commonly referred to as “transsexuals”, although the term is sometimes considered derogatory – generally face harsher discrimination than other sexual orientation minorities.

“Research shows that persons who underwent gender reassignment encounter more violence, including extreme violence, than gays,” she said. “They also have a harder time finding employment. There is unfortunately still a lot of ignorance on the subject.”

According to Calleja, society as a whole tends to use the traditional gender binary of male/female, and persons like Joanne challenge these concepts in a way that makes some people uncomfortable.

“People like to think of sexual orientation as simply a case of black or white, but the reality is more complex than that,” she said. “There are over 6 billion people in the world, and yet we assume there are only two genders. But contrary to popular perception, gender is a social construct; it is not fixed at conception as many people believe. There could be other genders apart from simply male and female.”
MGRM firther believes that Mr Justice Micallef’s ruling is itself illegal.

“In delivering this judgement, the Court goes against the case law of the European Court of Human Rights (Christine Goodwin vs. UK),” the organisation declares on its website.

“Furthermore, it expressly states that a post-op transsexual cannot get married to anyone, and in doing so clear violates Article 12 of the European Convention on Human Rights on the right to marry, to which Malta is signatory.”
Joanne Cassar has already indicated that for these and other reasons, she is willing to take her legal battle all the way to the highest court in Europe.