24 July 2011 by Gabi Calleja
While I am often in agreement with the positions taken and arguments made by Ms Caruana Galizia in her column, I must say that the assertion that no discrimination exists in respect of gay persons is not one of these instances. The fact that a heterosexual person is equally prohibited from marrying a person of the same-sex does not mean that no discrimination against gay and lesbian couples exists. The legal comparator of a heterosexual couple, that is a couple of the opposite sex, is a same-sex couple, that is, a lesbian or gay couple. A heterosexual person, because they are heterosexual, can marry the partner of their choice, that is, a member of the opposite sex. A gay, lesbian or bisexual person in a same-sex relationship on the other hand, cannot marry the partner of their choice. The institution of marriage is a heterosexist one, with the exception of those countries that have introduced marriage equality. To claim that gay, lesbian and bisexual people can choose to marry a person of the opposite sex does not imply equality but simply denies the fact that society chooses to validate and recognise heterosexual relationships and in the process discriminate against same-sex couples that wish to get married. It is unlikely that heterosexual people would chose to marry a person of the same sex since their attractions are otherwise inclined. Marriage carries with it a host of rights and obligations which same-sex couples are therefore automatically excluded from. Not only does the Maltese government differentiate between married opposite sex couples and same-sex couples, it also treats more favourably unmarried opposite sex couples to married same-sex couples. A case in point are the ETC Employment Licences Unit guidelines which state the following:
3.4 I am a partner of an EEA/Swiss national in Malta. May I work?
An application for an Employment Licence for a third country national, bona fide partner of a EEA/Swiss national who lives and works in Malta will be considered positively, provided that a residence card issued by the DCEA stating that the person is in fact "Other Family Member" is presented on application.
3.5 I am a same-sex spouse of an EEA/Swiss national in Malta. May I work?
Applications will be considered from a labour market perspective only.
There are a number of reasons why same-sex couples do not take cases to the European Court of Human Rights. One is that there is no universally recognised right to marriage equality for same-sex couples. Another is that this is a lengthy and costly process that involves exhausting all local remedies first before proceeding to the European Court. It is often simpler for couples with such means to simply leave the island for countries that provide them with such recognition. This apart from the fact that it would mean making one's private life very public. With respect to the European Court of Justice, the kinds of cases that can be brought forward are limited since Family Law does not fall under the competence of the European Union but is a matter reserved to each member State.
Claiming equal rights is not the same as shoving ones sex life into other people's faces. Heterosexual couples do not think twice about wearing a wedding ring, talking about their husbands and wives and celebrating their wedding anniversaries. All of these could equally be classified as shoving one's sex life into other people's faces. Often, 'choosing a quiet life' implies staying in the closet and hiding one's meaningful and long-term relationships from colleagues, friends or family. I am somewhat perplexed how a columnist who has often stated her acceptance of the LGBT community can refuse to acknowledge the discrimination that LGBT couples and their families encounter due to lack of recognition of their relationships.