Sunday, 29 May 2011

MGRM: Joanne Cassar vs Director of Public Registry - Constitutional Court affirms breach of Article 8 & 12 of the European Convention of Human Rights

Malta Gay Rights Movement, 32, Parish Street, Mosta, MST 2021
Tel 21 430 009 - Mob 9925 5559, www.maltagayrights.org - mgrm@maltagayrights.org

The sentence delivered by the Constitutional Court presided by Judges Geoffrey Valenzia, Giannino Caruana Demajo and Tonio Mallia affirmed that a breach of articles 8 & 12 of the Convention on Human Rights had taken place in respect of Joanne Cassar. However the Court stated that this breach occurred due to a lacuna in Maltese legislation that does not allow for transgender persons to enter into what it termed 'a life partnership'.

The Court did not recognise the right of the post-operative transgender woman to have her affirmed gender identity recognised by law adopting the narrowest possible interpretation of gender based solely on biological criteria.

The MGRM holds that the failure of the Maltese Constitutional Court to recognise Joanne Cassar as a woman goes against the judgement of the European Court of Human Rights as expressed in Goodwin vs UK and other recent judgements and also jurisprudence of the European Court of Justice[1].

As reiterated in the Proposed Gender Identity Act for Malta MGRM holds that gender identity is a matter for the individual to decide and that the State is duty bound to respect this identity by granting full and effective legal recognition. Anything less than this violates the right of the individual to self-determination and often leads to a violation of the transgender person's rights to private and family life.

This implies the right of women like Joanne Cassar who have satisfied all the legal requirements to change their gender to then marry a person of the opposite sex, in this case a man.

[1] ECJ, C-423/04, Richards vs. Secretary of State for Work and Pensions (27th April 2006)

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