Joanne Cassar: Petition sent to the European Court in Strasbourg

1.6.11, Dr. José Herrera,
Jose' A. Herrera & Associates Advocates, 51, St. Christopher Street, Valletta, Malta
Tel. +35621244183, +35621233797, Mob: +35699473964

Recently the Constitutional Court decided that there was a breach of Joanne Cassar's fundamental human rights but it did not provide a remedy. We are petitioning the European Court of Human Rights asking it to provide a remedy. We are also asking for compensation.

Dr. Jose' Herrera and Dr. David Camilleri are appearing for Joanne Cassar.

Petition sent to the European Court in Strasbourg:

The applicant was born on the 24th September 1981 and was registered on his birth certificate as a male. She always felt that she was in fact a female. She sought help and in October 2004 she contacted Dr. Hermann P. Farrugia regarding since she was considering undergoing an operation of gender reassignment. Eventually she did undergo this operation successfully on the 20th January 2005.

Maltese law in section 257(A) of Chapter 16 states that:-

(1) It shall be lawful for any unmarried person domiciled in Malta to bring an action for an annotation regarding the particulars relating to sex which have been assigned to him or her in the act of birth.
(2) Before delivering judgement, the Court shall appoint experts to verify whether the person who has brought the action has, in fact, undergone an irreversible sex change from that indicated in the act of birth or has otherwise always belonged to such other sex.
(3) Any action shall be brought against the Director of Public Registry by way of writ of summons before the Civil Court, First Hall, or the Court of Magistrates (Gozo) (Superior Jurisdiction) as the case may be.
(4) The provisions of subarticle (1) shall apply to foreign acts of birth registered in Malta.
(5) All expenses relating to such litigation including those incurred by the Director of Public Registry shall be borne by plaintiff.

Then section 257B states the following:-

(1) The court shall allow the plaintiff’s request if it is of the opinion that it has been sufficiently established that the plaintiff belongs to the sex claimed by him and that the plaintiff’s condition can be considered as permanent.
(2) The court may also order an annotation in the name or names of the plaintiff if it has allowed the request.

The applicant proceeded with court proceedings as contemplated under these two sections of law. These proceedings were decided on the 28th June 2006. The First Hall Civil Court declared that applicant had assumed the feminine sex irriversibly. The Court also ordered as per section 257A of Chapter 16 above-quoted that an annotation is made in her birth certificate whereby her details regarding her sex are changed from male to female. The Court also ordered that an annotation is also made stating that her name is changed from Joseph to Joanne.

Subsequently applicant and her boyfriend Terence Abdilla applied to the Director of Public Registry to issue their marriage bans. Their request was refused.

Because of this refusal, the applicant proceeded with an application to the Civil Court (Volontary Jurisdiction) asking for it to order the Director of Public Registry to issue her marriage bans. This application was made under article 8 of the Maltese Marriage Act which states the following:

(1) If the Registrar is of the opinion that he cannot proceed to the publication of the banns or that he cannot issue a certificate of such publication he shall notify the persons requesting the publication of his inability to do so, giving the reasons therefor.
(2) In any such case, either of the persons to be married may apply to the competent court of voluntary jurisdiction for an order directing the Registrar to publish the banns or to issue a certificate of their publication, as the case may require, and the court may, after hearing the applicant and the Registrar, give such directions as it may deem appropriate in the circumstances, and the Registrar shall act in accordance with any such directions.

By a decree given on the 12th February 2007 the Civil Court (Volontary Jurisdiction) acceeded to the applicant’s request and ordered her bans to be issued.

The Director of Public Registry proceeded with further court proceedings in the First Hall Civil Court in order to impune the decree dated 12th February 2007. On the 21st May 2008 the First Hall Civil Court decided these proceedings by accepting the requests of the Director of Public Registry and revoked the decree. That Court argued that the annotation made on the birth certificate as ordered by the judgement dated 28th June 2006 was only intended to protect the applicant’s privacy and does not give her any rights to consider herself a female for the purposes of contracting marriage.

Subsequently the applicant presented an application in the First Hall Civil Court in its Constitutional Jurisdiction. She asked for the following:
i) A declaration that the fact that Maltese law does not recognise transexuals as persons of the acquired sex for all intents and purposes including for the purpose of contracting marriage, breaches her fundamental human rights as protected under article 32(c) of the Maltese Constitution and articles 8 and 12 of the European Convention of Fundamental Human Rights.
ii) A declaration that under Maltese law a transexual is prohibited from marrying a male and is also prohibited from marrying a female breaches her right to protection from inhuman and degrading treatment as contemplated under article 36 of the Maltese Constitution and article 3 of the European Convention.
iii) She asked for a remedy including a declaration that the Director of Public Registry cannot issue bans of marriage between applicant and a person of a male sex.
iv) She asked for compensation.

The Director of Public Registry contested these request and by a judgement dated 30th November 2010 the First Hall Civil Court in its Constitutional Jurisdiction acceeded to her requests and declared that:-

i) The fact that Maltese law as applied and interpreted by the Director of Public Registry does not recognise transexuals as persons of the aquired sex for all intents and purposes as law including the law regulating marriage, breaches her fundamental human rights as contemplated in article 8 and 12 of the European Convention
ii) The Director of Public Registry cannot refuse to issue the bans of marriage of the applicant with another person of the male sex, just because she underwent gender reassignment surgery.

The Director of Public Registry appealed from this judgement to the Constitutional Court. By a judgement dated 23rd May 2011 the Constitutional Court confirmed that part of the appealed judgement whereby the First Hall Civil Court declared there was a breach of applicant’s rights as protected by article 8 and 12 of the European Convention. However it revoked that part of the judgement whereby the First Court delared that the Director of Public Registry cannot refuse to issue the bans of marriage the applicant with another person of the male sex, just because she underwent gender reassignment surgery. Instead it declared that the remedy should not be marriage. If parliament had to provide a law protecting a partnership for life between people in the position of the applicant the breach would be redressed.

The applicant submits that the Maltese Constitutional Court was right in deciding that the fact that Maltese law as applied and interpreted by the Director of Public Registry does not recognise transexuals as persons of the aquired sex for all intents and purposes as law including the law regulating marriage, breaches her fundamental human rights as contemplated in article 8 and 12 of the European Convention. Article 13 of the Convention states that:

“Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”

Applicant in the proceedings as stated above was not granted a remedy. She was only granted a declaration that her fundamental human rights as protected by article 8 and 12 of the European Convention were breached.

The effective remedy was that afforded by the judgement which was subsequently appealed, that is the judgement of the 30th November 2010, whereby apart from the said declaration, the Court also stated that the Director of Public Registry cannot refuse to issue the bans of marriage of the applicant with another person of the male sex, just because she underwent gender reassignment surgery. However this second declaration was sebsequently revoked on appeal by the Director fo Public Registry. The Constitutional Court simply stated that if parliament enacts a law providing for a partnership for life for transexuals the breach would be remedied. The Constitutional Court did not even go far as to direct parliament to enact such legislation.

Even the remedy suggested (and not provided) by the Constitutional Court does not satisfy the criteria of being an effective remedy. The effective remedy in the circumstances is that provided by this court in the case Christine Goodwin vs The United Kingdom (Application no. 28957/95) decided on the 11th July 2002 whereby this court stated:

“The coherence of the administrative and legal practices within the domestic system must be regarded as an important factor in the assessment carried out under Article 8 of the Convention. 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 (as demonstrated in the case of X., Y. and Z. v. the United Kingdom, cited above), it appears illogical to refuse to recognise the legal implications of the result to which the treatment leads.”

In Malta the state has not authorised the treatment and surgery alleviating the condition of a transsexual. However the Maltese state had introduced a procedure as stated above (section 257A of Chapter 16) whereby transexuals can proceed before the local courts to have an annotation in the birth certificate recognising the effects of the gender reassignment operation.

During the proceedings before the Maltese Courts the government argued that marriage in Malta is a matter of public policy and as such falls within the margin of appreciation of the state. This goes contrary to the teachings contained in the quoted judgement of Goodwin vs UK whereby this court clearly stated that:

“Having regard to the above considerations, the Court finds that the respondent Government can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention. 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.”

By a judgement dated 23rd May 2011 the Constitutional Court confirmed that part of the appealed judgement whereby the First Hall Civil Court declared there was a breach of applicant’s rights as protected by article 8 and 12 of the European Convention. However it revoked that part of the judgement whereby the First Court delared that the Director of Public Registry cannot refuse to issue the bans of marriage the applicant with another person of the male sex, just because she underwent gender reassignment surgery. Instead it declared that the remedy should not be marriage. If parliament had to provide a law protecting a partnership for life between people in the position of the applicant the breach would be redressed.

By a judgement dated the 28th June 2006, the First Hall Civil Court declared that applicant had assumed the feminine sex irriversibly. The Court also ordered as per section 257A of Chapter 16 above-quoted that an annotation is made in her birth certificate whereby her details regarding her sex are changed from male to female. The Court also ordered that an annotation is also made stating that her name is changed from Joseph to Joanne.

By a decree given on the 12th February 2007 the Civil Court (Volontary Jurisdiction) acceeded to the applicant’s request that her marriage bans be issued. #

There is no other appeal or available remedy.

# By a judgement dated 21st May 2008 the First Hall Civil Court accepted the requests of the Director of Public Registry and revoked the decree. That Court argued that the annotation made on the birth certificate as ordered by the judgement dated 28th June 2006 was only intended to protect the applicant’s privacy and does not give her any rights to consider herself a female for the purposes of contracting marriage.
By a judgement dated 30th November 2010 the First Hall Civil Court in its Constitutional Jurisdiction acceeded to her requests and declared that:-
i) The fact that Maltese law as applied and interpreted by the Director of Public Registry does not recognise transexuals as persons of the aquired sex for all intents and purposes as law including the law regulating marriage, breaches her fundamental human rights as contemplated in article 8 and 12 of the European Convention
ii) The Director of Public Registry cannot refuse to issue the bans of marriage of the applicant with another person of the male sex, just because she underwent gender reassignment surgery.

The object of the application is an effective remedy and compensation. Applicant is asking for a declaration that the Director of Public Registry cannot refuse to issue the bans of marriage of the applicant with another person of the male sex, just because she underwent gender reassignment surgery. Applicant is also asking for compensation due to the fact that over all these years pending these proceedings, although it has been established that her fundamental human rights as explained above have been breached, she has not been granted an effective remedy.

The complaint has not been submitted to any other procedure of international investigation or settlement.

Dok A - judgement dated 23rd May 2011 given by the Constitutional Court.
Dok B- judgement dated the 28th June 2006 given by the First Hall Civil Court.
Dok C – decree given on the 12th February 2007 by the Civil Court (Volontary Jurisdiction).
Dok D - judgement dated 21st May 2008 given by the First Hall Civil Court (Constitutional Jurisdiction).