Tuesday, May 24, 2011 , by Claudia Calleja
Joanne Cassar, who underwent gender reassignment surgery to become a woman, will be taking her case to the European Court of Human Rights next week after she fought in vain a four-year legal battle for the right to marry.
The Constitutional Court yesterday ruled that her fundamental rights to marriage and family life had been breached because of a legal shortcoming in Maltese law that failed to cater for her situation.
The court said its ruling did not stem from the fact that the marriage registrar had refused to issue the banns, as a previous court had found. In fact the court revoked that part of the judgment in which it was said the banns should have been issued.
Her rights had been breached because there was a lacuna in the law that did not allow transgender people to enter into any form of life partnership, according to the court presided by Mr Justice Geoffrey Valenzia, Mr Justice Giannino Caruana Demajo and Mr Justice Tonio Mallia.
"With the situation as it is today she is deprived of forming a lifetime partnership with a man or a woman.
"This partnership need not be marriage, and should not be from the nature of the circumstances... but the law should cater for another form of partnership," the judges found.
Ms Cassar's battle for marriage goes back to September 2006 when she and her partner applied for the wedding banns. The Marriage Registrar refused to issue them even though Ms Cassar had legally changed her gender to female on her birth certificate after the surgery.
Her wedding was planned for December 2007. The stress of the court battle, coupled with the publicity, piled pressure on the couple's relationship and they are no longer together.
In February 2007, Ms Cassar 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 However, in May 2008, the decision was revoked on appeal.
The appeal court ruled Ms Cassar would never be considered to be a "woman" according to the Marriage Act and declared the change in her birth certificate, allowing a change of name and gender, was only intended to protect the right to privacy and to avoid embarrassment.
Determined to fight for her right to marry, she opened a case in the First Hall of the Civil Court in its constitutional jurisdiction, claiming a breach of human rights. The court ruled in her favour last December when it found that the registrar could not have refused to issue the banns once she was recognised as a woman.
The law as applied by the registrar did not recognise the acquired gender of a transsexual for all legal purposes including marriage. This was in breach of Ms Cassar's fundamental human right to respect for family life and her right to marry, the court had ruled. The Attorney General appealed claiming a wrong interpretation of the law.
Yesterday the Constitutional Court found that although Ms Cassar's rights had been breached this was due to shortcomings in the law to cater for some form of partnership for people in her situation. It did not result that the banns should have been issued.
Ms Cassar's lawyers said their next step would be to take the case before the European Court of Human Rights.
The Malta Gay Rights' Movement criticised the judgment for not recognising that Ms Cassar was a woman for all legal intents and purposes. This was backed up by Aditus, an organisation that promotes access to rights, which said the judgment went against decisions by the European Court of Human Rights affirming that post-operative transgender people, who fulfilled all legal requirements to have their gender recognised, should have full access to the right to marry.
Lawyers David Camilleri and Josè Herrera appeared for Ms Cassar.
Joanne Cassar had been diagnosed with gender identity disorder, a conflict between a person's physical or apparent gender and that person's self-identification.
From an early age, she felt she should have been a woman. After keeping her feelings bottled up for years and enduring bullying at school, when she turned 15 she opened up to her parents who were immediately supportive.
Aged 22, she travelled to the UK for her gender reassignment surgery. Before going under the knife she was subjected to various hormone treatments and medical and psychiatric tests to ensure she was medically and psychologically prepared for the invasive surgery.
Soon after she filed a court application to have her gender changed to female on her birth certificate. The court upheld the request allowing her documents to truly reflect who she felt she was.
Having been with her boyfriend for several years they planned to get married in December 2007. All did not go as planned. However, Ms Cassar remained convinced the right to marry deserved to be fought for even if she was not the lucky one to walk down the aisle.
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