Friday, 24 December 2010

Di-ve: Decision granting right to marry after gender reassignment appealed
22 December 2010 -- 12:35CEST

A Court decision confirming that a woman who was born male was free to marry was appealed by the Attorney General, leading to criticism by her lawyers and by political parties.
Joanne Cassar was born a male, but underwent gender reassignment in 2005 and was legally recognised as female in 2006. Despite this legal recognition, the Marriage Registrar refused to issue the marriage banns when she sought to marry her boyfriend of several years, insisting that she was still male.

Ms Cassar took him to Court, and he was ordered to issue the marriage banns, but an application to have the order revoked was successful.

This led the 29-year-old woman to file a constitutional application, stating that by denying her the right to marry, the Maltese Courts went against Article 12 of the European Convention of Human Rights, which states that "men and women of marriageable age have the right to marry and found a family, according to the national laws governing the exercise of this right."

In earlier decisions, the European Court of Human Rights had ruled that states were free to prohibit people who underwent gender reassignment to marry persons of now-opposite sex, but this was overturned in 2002 in a case brought by British national Christine Goodwin against her country's government.

This ruling was recognised by Mr Justice Joseph Micallef, who ruled that Ms Cassar was being unlawfully denied the right to marry. However, this decision is now being appealed by Attorney General Peter Grech.

In his appeal, Dr Grech argued that the Convention did not oblige the state to recognise marriages which went against the public order, and that in Malta's case, this was a marriage between 2 persons of opposite sex. He insisted that Ms Cassar could not be considered to be a woman for this purpose.

Ms Cassar's lawyers, David Camilleri and José Herrera, replied to the appeal, insisting that Mr Justice Micallef's ruling was a correct interpretation of the Convention, citing the Goodwin case to back their argument.

The appeal was also criticised by the Labour Party and Alternattiva Demokratika. Labour's

minority rights spokesman, Gino Cauchi, expressed his disappointment at the decision to appeal, stating that it was unacceptable for the authorities to consider European laws only when it suited them, expressing hope that the decision was not made because of pressure from conservative elements of society.

AD chairman Michael Briguglio, meanwhile, lamented that "once again, the confessional ideology of state institutions is rearing its ugly head," and called for more solidarity with the LGBT movement in Malta.

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