The court's decision to allow a transsexual to marry made an important statement that gender identity is not simply biological, according to the Malta Gay Rights Movement.
"I'm very happy the judgment was in favour; it gave an important recognition to transsexuals," MGRM chairman Gabi Calleja said.
Four years after she applied for her wedding banns, transsexual Joanne Calleja was this week finally granted the right by a court to get married to a male after it ruled her gender reassignment surgery should not prejudice her right to a husband.
She started her legal battle after the Marriage Registrar had refused to issue her wedding banns in September 2006, even though Ms Cassar had legally changed her gender to female on her birth certificate.
Ms Calleja pointed out the Constitutional Court's decision finally took into account a judgment handed down by the European Court of Human Rights. "The precedent for this case was there in the European Court but still Ms Cassar had to go through a legal battle and a lot of expenses."
In February, Ms Cassar had won a civil case in which the court ordered the Marriage Registrar to issue the wedding banns he had previously refused to issue. However, in May 2008, the decision was revoked on appeal. She then opened another case in the Constitutional Court, claiming breach of her fundamental human rights.
Ms Calleja pointed out the European judgment clearly stated that current thinking and practice also gave considerable importance to psychological factors. "Also, the European Court held that the margin of appreciation allowed to states did not go so far as to permit the denial of a fundamental right such as the right to marry for persons of the opposite legal sex," Ms Calleja said.
She said she hoped there would not be another appeal filed by the government. "We have no idea if it will happen but we are hoping it will not," she said.
She argued the case should have never reached this point. "Although it's great news, the past three years should have never happened and the first appeal should have never been filed."
Ms Calleja described it as a "landmark case" because the decision was handed down by a higher court – in this case the Constitutional Court.
"While this judgment is a step forward for all postoperative trans persons, a great deal still has to be achieved for the rights of transgender persons to be fully respected," she added.
The outcome of the judgment should have already been reflected in Maltese law, she pointed out.
The movement will be launching a draft Gender Identity Bill to mark Human Rights Day on December 10. The Bill seeks to offer comprehensive legal protection and redress to trans persons.
When contacted, human rights lawyer Therese Comodini Cachia said Tuesday's decision gave due consideration to the legal recognition under Maltese law of the gender identity obtained following a sex change operation.
Recognising one's gender identity as being male or female reflected not only one's physical attributes at birth but also one's psychological development, she said.
The judgment also gave a detailed analysis of the European Court of Human Rights case law.
"In providing legal recognition for a gender that is assumed, the law automatically gives rise to the exercise of a person's everyday life experiences with the respect deserved," she said.
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