Wednesday, 4 January 2012

Malta Star: Joanna Cassar's case expected to be heard by the European Court of Human Rights in 2012
27 December 2011 07:38

Joanna Cassar's case is expected to be heard in the coming months by the European Court of Human Rights where she will hope to bring to a successful outcome a battle she has been waging since 2006 to obtain the right to marry. Earlier on this year she petitioned the European Court of Human Rights in Strasbourg requesting compensation after the Maltese courts recognized that her rights had been breached but offered no effective remedy.

Joanne was born a man but was legally declared female following gender reassignment surgery. Five years ago she filed an application with the Marriage Registrar to marry a man. The Marriage Registrar refused to issue the marriage banns and so she filed an application asking the Court to order the issuing of the banns. On 12th February 2007 the Civil Court, presided by Mr. Justice Gino Camilleri, delivered a historic judgment ordering the Director of Public Registry to issue the marriage banns for the woman, after noting that the union between her - who had been recognised as a woman on her birth certificate - and her male partner did not contravene any provision of the Marriage Act.

But on 28th February 2007 the Registrar of Marriages asked the Civil Court to reverse the court decree permitting the marriage banns to be issued. In May 2008, the Court, presided by Mr. Justice Joseph R Micallef, upheld the requests of the Marriage Registrar and declared that the change in the woman's birth certificate, allowing a change of name and gender, was only intended to protect the right to privacy and to avoid embarrassment. The Court also ruled that the marriage of the woman in question to a man was in breach of the Marriage Act and revoked the 12th February 2007 ruling saying it was based on an "unrealistic premise" as the parties were not of the opposite sex.

In delivering this judgment, the Court went against the case law of the European Court of Human Rights (Christine Goodwin vs. UK). Furthermore, it expressly stated that a post-op transsexual cannot get married to anyone, and in doing so clearly violated Article 12 of the European Convention on Human Rights on the right to marry, to which Malta is signatory. After this judgment Joanne had stated: "How can you call me a transsexual or a man? I always felt I was a woman. I am a woman"...

Joanne Cassar's right to marry was finally restored at the end of November 2010 when the Constitutional Court ruled, in line with the European Court of Human Rights that she can marry her fiancé`. Eventually she and her husband to be separated and she changed her request to be given the right to marry into one allowing her to enter a life partnership.

Last June Joanne Cassar took her case to the European Court of Human Rights in Strasbourg. Her lawyers, José Herrera and David Camilleri, have petitioned the court, asking for the provision of an effective remedy, as well as compensation after the Constitutional Court ruled that a ban on transgender marriage violates the European Convention on Human Rights on the right to marry.

The Court of Appeal also acknowledged that Ms Cassar's fundamental rights had been breached when she was denied the right to get married, but no effective remedy was provided. She is asking for compensation "due to the fact that over all these years pending these proceedings, although it has been established (by the courts) that her fundamental human rights have been breached, she has not been granted an effective remedy."

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