TUESDAY, JUNE 21, 2011 By RAPHAEL VASSALLO
The case of a transsexual woman denied the right to marry exposes glaring confusion over the legal rights of LGBT persons, with no local remedy in sight
The United Nations this week made history by endorsing gay, lesbian transgender rights for the first time ever. But Malta has yet to overcome a number of legal stumbling blocks in achieving full LGBT equality – including a glaring contradiction when it comes to legal recognition of acquired gender through surgery.
The ongoing saga of Joanne Cassar – a post-op transsexual woman who has been fighting for the right to marry for six years – has thrown this anomaly into sharp focus.
The case has now yo-yoed between all Malta’s courts, without reaching any clear conclusion. On the one hand, Cassar’s acquired status as woman has been recognised at law, and her birth certificate amended accordingly; but while a lower court granted her the right to marry after contestation by the Registrar of Marriages, the Appeals Court overturned the earlier ruling.
And while the Constitutional Court duly acknowledged that Cassar’s rights had been breached, it stopped short of according her the right to marry… resulting in a curious anomaly whereby the State now recognises human rights violations, but at the same time offers the victim no workable remedy.
Cassar’s legal representative Dr David Camilleri told MaltaToday that the issue revolves around a number of judgements (and conflicting interpretations thereof) handed down by the Constitutional Court in recent years.
“Through these judgements, it was established that the fact that a transgender was not recognised as a person of the acquired sex (the sex acquired after the gender reassignment surgery) in all acts of civil status breaches his fundamental human rights – namely article 8 of the European Convention of Human Rights, the right to privacy,” Camilleri said.
“The remedy provided by these judgements was for the details of the person in question to be corrected on the birth certificate and an annotation is made on the certificate stating that the correction is being made on the basis of the relative court judgement. One such landmark case was Joseph sive Tracey Ellul vs The Attorney General, in which Dr Jose’ Herrera and myself were assisting Ellul.”
As a result of section 257A, a transgender could now ask the court to order that an annotation is made in the birth certificate reflecting the change in sex. The court only needed to ascertain that there was a permanent physical change in sex (gender reassignment surgery), and that the person was not married and was domiciled in Malta.
“We were arguing in Joanne Cassar’s case that by this amendment (257A) once a judgement was obtained then the state would have in fact recognised the person as a member of the acquired sex to all intents and purposes at law. With regard to Joanne Cassar, we argued that this means that the person would have a right to marry a man as any other person who was born a woman. The Attorney General on the other hand stated that this section was simply there to protect her privacy.”
According to Camilleri, the Constitutional Court stopped short of giving a remedy in ordering her marriage banns to be published because, it argued, marriage as a matter of public policy and in Malta marriage is a bond between a man and a woman (born as a woman).
This however flies in the face of a seminal European Court of Human Rights ruling, Christine Goodwin vs UK (July 2002), which stated “…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.”
Camilleri argues that this ruling contradicts the argument of the Constitutional Court.
“The consequence of this would be that when transsexuals apply to the public registry to marry, the director of public registry cannot refuse to issue the relative banns,” he asserts. “We are quite optimistic that the outcome will be positive. If, on the other hand, the outcome is against our petition, then the judgement of our Constitutional Court would be final and this would seem to imply that Parliament would have to legislate in favour of some life partnership applicable to post operative transsexuals. However we feel this would not be a sufficient remedy to redress the breach in their rights as protected in article 8 and 12 of the Convention.”
Earlier this year, the Malta Gay Rights Movement issued policy guidelines for a law on gender identity, but the proposals have not been taken up by legislators so far.
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