30th November 2010, By Raphael Vassallo
Joanne Cassar: born male, but now legally recognised as a woman
Transgender woman was refused permission to marry in Malta, but has won a Constitutional case recognising her gender status as female.
Joanne Cassar, who had been denied the opportunity to marry because (despite having undergone gender reassignment therapy) she was considered ‘still a man’, has won her legal battle for the right to marry.
In a brief Constitutional Court judgement delivered this morning, Mr Justice Raymond C. Pace cited a previous European Court of Human Rights ruling (Christine Goodwin vs. UK) which established that a ban on transgender marriage, of the kind imposed by the lower courts in previous rulings, violated Article 12 of the European Convention on Human Rights on the right to marry, to which Malta is signatory.
Effectively this frees Cassar to marry her long-standing (male) partner, but the Registrar of Marriages still has 20 days in which to appeal the ruling.
Cassar’s battle began in May 2006, when the Registrar of Marriages refused to issue marriage banns for Cassar and her fiance on the grounds that the Marriage Act prohibited unions between persons of the same gender – and despite the fact that Cassar’s birth certificate had been amended post-surgery to reflect her gender change.
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 necessary marriage banns.
But the registrar appealed, and in his decision to overturn the ruling in May 2008, 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
According to Gabi Calleja, president of the Malta Gay Rights Movement, research shows that persons who underwent gender reassignment encounter more violence, including extreme violence, than gays. “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."
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