Wednesday, 8 August 2012

Times: ‘Transgender’s case should be thrown out’

Joanne Cassar has been fighting for her right to marry since 2006.

The European Court of Human Rights ought to overturn a 2002 judgement that separated the right to marry from the right to form a family and throw out the case a transgender filed against Malta, according to an international NGO.

In submissions on the case Joanne Cassar filed against Malta, which is pending before the European Court of Human Rights in Strasbourg, the European Centre for Law and Justice said the court should look at this case as an opportunity to move away from the “progressive” and return to the “traditional” – that the right to marry and the right to form a family are intertwined.

Ms Cassar, who has been fighting for her right to get married since 2006, took her case to the European Court, asking for an effective remedy after a Constitutional Court in Malta ruled that a ban on transgender marriage violated the right to marry.

In its legal opinion on the case, which is not legally binding, the centre said a precedent created in a judgement on a similar case handed down 10 years ago ought to be corrected.

The centre filed the opinion after receiving the green light from the Court to submit it, as it does on a limited number of cases that it finds legally interesting.

Through Ms Cassar’s case, the European Court is required to rule on the compatibility with the European Convention on Human Rights of the impediments that prevent transgender people from marrying a person of the same biological sex.

A judgement against Malta would oblige this country to separate marriage from family as the European Court had done in 2002, in the case instituted by UK national Christine Goodwin, in which it separated the right to marry from starting a family.

Centre director Grégor Puppinck and lawyers Claire de La Hougue and Andreea Popescu said in their observations that the court was trapped between progress and tradition.

“(As a result) its judgements are less considered by commentators in function of their legal accuracy than in function of their degree of progressivism and social advancement.”

The division it was battling “altered the quality of its judgements and contributes to the weakening of its authority”.

They referred extensively to the UK case, saying the judgement was “indicative of the crisis facing the court in recent years”.

“Hopefully, the court will take the opportunity in the case of (Ms Cassar) to correct its jurisprudence and reconnect with a more realistic and objective understanding of the right to marry and found a family,” they said.

What makes Ms Cassar’s case interesting, they noted, was the reference by the Maltese Constitutional Court to the Goodwin case as being “…of little relevance” as it was based only on “social changes and subject to social engineering”.

“Such an accusation… must provoke serious reflection. In fact, this reflects on the authority of the court and the limit of its role in social engineering is already widely occurring within the Council of Europe...,” they said.

They believe that what was possible for the court to impose in 2002 would “most likely” be much less possible 10 years later, especially in view of the Maltese cultural context “where divorce has only been allowed since 2011”.

Tearing apart the Goodwin judgement, the centre says that the right to marry is “almost systematically” defined as the right to marry and found a family, with the two elements being “one and the same right, not two associated rights”.

The purpose of marriage is not to give a social recognition to the mutual affection of the spouses. “In law, this affection belongs only to the private life and it would be absurd to pretend that there is a right to have intimate sentiments recognised or endorsed by the state, especially while, at the same time, the state is asked not to break into individual’s private and sexual life,” they said.

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