Di-ve: Joanne Cassar's right to marry overturned on appeal

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by John Paul Cordina - editorial@di-ve.com
Court -- 23 May 2011 -- 13:00CEST

A constitutional ruling which granted a woman who had been born male the right to marry has been overturned this morning after the Constitutional Court ruled on an appeal filed by the Attorney General.

Joanne Cassar had been born male, but she underwent gender reassignment surgery in 2006 and was legally recognised as female in 2006. Despite the legal recognition, however, the Marriage Registrar refused to issue the marriage bans when she sought to marry her boyfriend, insisting that she was still male.

Ms Cassar took the registrar to court, and in February 2007 he was ordered to issue the marriage banns. But this decision was appealed, and the appeal was successful.

Undeterred, Ms Cassar filed a constitutional application, in which she said that by denying her 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 surgery from marrying persons of a now-opposite sex, but this was overturned in 2002, when British national Christine Goodwin took her country's government to court.

This ruling was recognised by Mr Justice Joseph Micallef last year, when he ruled that Ms Cassar was being unlawfully denied the right to marry. But this decision was appealed by Attorney General Peter Grech, who opted to file an appeal.

This appeal was successful, with judges Geoffrey Valenzia, Giannino Caruana Demajo and Tonio Mallia stating that the marriage registrar interpreted Maltese law correctly. However, they also confirmed that breaches of the Convention had taken place due to lacunae in Maltese law, and asked for Parliament to remedy the situation.

Ms Cassar is now set to take her case to the ECHR, where the Goodwin v. UK case has set a precedent.

The ruling has been condemned by the Malta Gay Rights Movement, which noted that the court adopted "the narrowest possible interpretation of gender based solely on biological criteria," to deny Ms Cassar's right to have her affirmed gender identity recognised by law.