Thursday, 23 December 2010

Times: PL, AD, disagree with appeal in transsexual's right-to-marry case

Lawyers insist consequences of gender re-assignment surgery must be recognised
Wednesday, 22nd December 2010 - 10:36CET

The Labour Party said today that it was disappointed by the decision of the Attorney General and the Marriage Registrar to appeal a decision which had granted a transsexual - Joanne Cassar - the right to marry a man after gender-reassignment surgery.

Spokesman Gino Cauchi said that Mr Justice Ray Pace had rightly decided that a person whose gender reassignment had been recognised by the state and had her official documents changed, should enjoy the civil rights which such a change brought about.

This judgement, the PL said, conformed with European human rights laws and decisions of the European Court of Human Rights.

The PL said it hoped that this appeal was not the result of pressure from conservative forces which were opposing the granting of rights which were granted elsewhere in Europe.

It said the Maltese parliament should legislate to avoid such situations, prejudices and discrimination.


Alternattiva Demokratika also expressed disappointment with the Attorney General's appeal.

" A democratic and responsible government should always protect civil liberties without excluding any minority. ' Michael Briguglio, AD Chairman, said. 'The constitutional court had rightly based its judgement on the charter of fundamental rights of the EU. Yet, once again, the confessional ideology of state institutions is rearing its ugly head. This only calls for more solidarity with the LGBT movement in order that Malta would stop acting like the crib of the Europe'.


Meanwhile the legal counsel of Joanne Cassar this morning replied to the appeal.
Drs David Camilleri and Jose' Herrera insisted that the judgement of the Constitution Court was rightly based on the Charter of Fundamental Rights of the European Union which reflected changes in views on the Institute of Marriage and medical developments and science regarding transsexuals. Therefore, it was irrelevant if ideas about marriage in Malta had changed or had remained the same through the years.

The defence counsel argued that local legislative changes which allowed transsexual people to have their ID card details changed were not made solely to protect their privacy, and the state also had to recognise the legal consequences of such changes.

The Attorney General in his appeal had argued that the European Convention did not guarantee the right for one to have a family, but assumed the existence of a family.

However, the defence team argued, the existence or otherwise of a family was irrelevant. The view of the First Court were based on a European Court judgement in the case Christine Goodwin vs The United Kingdom which declared that:

“Where a State has authorised the treatment and surgery alleviating the condition of a transsexual, financed or assisted in financing the operations and indeed permits the artificial insemination of a woman living with a female-to-male transsexual, it appears illogical to refuse to recognise the legal implications of the result to which the treatment leads.”

In Joanne Cassar's case, the state had not authorised or provided her gender re-assignment treatment, but had recognised the legal effects of the operation. It was therefore illogical for the state to now refuse to recognise the legal implications of that recognition.

Furthermore, in the Goodwin case, the (European) court had also declared that:
“Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, it reaches the conclusion that the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant. There has, accordingly, been a failure to respect her right to private life in breach of Article 8 of the Convention.”

The counsel said it was also irrelevant that Ms Cassar had not proved the existence of a family involving her and another person. Neither was it relevant that Ms Cassar was currently not in a relationship.

On whether a state could control who got married and whether this was an automatic right, the counsel argued that the European Court sentence showed that there was a need for change on views on marriage.

The European Court had declared:

“…that a test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual. There are other important factors – the acceptance of the condition of gender identity disorder by the medical professions and health authorities within Contracting States, the provision of treatment including surgery to assimilate the individual as closely as possible to the gender in which they perceive that they properly belong and the assumption by the transsexual of the social role of the assigned gender.”

Therefore, it was irrelevant whether local views on marriage had changed or not.

[Click on the hyperlink above to view the comments on the Times' website.]

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