MGRM and aditus foundation welcome the government’s decision to drop its objection to Joanne Cassar’s claim to the right to marry.
Wednesday 3 April 2013 - 15:00 by Raphael Vassallo
Joanne Cassar's right to marry brings to an end a seven-year ordeal.
News that government is to amend the Marriage Act - so that transsexuals may marry partners of their choice according to their 'acquired' gender - was greeted with jubilation and relief yesterday.
None, however, was quite as jubilant as Joanne Cassar: a post-op transsexual whose right to marry her long-term (male) partner became the subject of an unresolved seven-year legal wrangle, that ended up in the European Coiurt of Human Rights in Strasbourg.
Cassar was unable to contain her enthusiasm on the social networks, at the news that government would overturn an official policy against allowing her the rights, entitlements and privileges that should theoretically have come with the State's official recognition of her 'reassigned' gender. Cassar's reaction on Facebook was: "kemmmmmmmmmmmmmmmmmm jiena ferhanaaaaaaaaaaaaa grazzi il maltin ghax vera malta taghna il koll :) kemm jien ecitataaaaaaaaaaaaaaaaaaaaa..." [sic]
No direct translation can quite do justice to such a spontaneous expression of "happiness", "excitement" and "gratitude". Suffice it to say that her keyboard evidently shared in her enthusiasm.
The Malta Gay Rights Movement's coordinator Gabi Calleja expressed her personal satisfaction at the development to MaltaToday.
"I think it's about time that Joanne Cassar's ordeal was brought to an end, and that we finally conform to European law at least in so far as marriage is concerned."
Details on the legal amendment will reflect the principle that, by officially recognising a person's reassigned gender identity through documentation (eg, ID card or driver's licence), the State also de facto commits itself to acknowledging and protecting all the rights and privileges associated with that particular gender identity.
These rights include that of marrying a person of the opposite sex: something hitherto denied for persons in this (admittedly uncommon) predicament.
Once the legal amendments are in place, the case filed against Malta by Cassar will be withdrawn, and her legal expenses refunded by the State.
The right of transgender persons to marry was firmly established in a preceding case dating back to 2002 - Christine Goodwin vs. the United Kingdom - where the ECtHR held that it found no justification for barring transsexuals from enjoying the right to marry under any circumstances.
MGRM and Aditus said in a joint statement that they welcomed the government's pledge to promptly enact the required changes to the Civil Code to ensure recognition of transgender persons as persons of the acquired sex for all intents and purposes, including marriage. "In addition we reiterate the need for a comprehensive Gender Identity Bill, as proposed by MGRM in 2010, that would facilitate the gender recognition of transgender persons and safeguard their fundamental human rights, including the right to respect for privacy and family life as established in Article 8 of the European Convention of Human Rights."
Seven years in limbo
Joanne Cassar's ordeal began in 2006, when - after undergoing a complex and expensive procedure to change her sex from male to female, and having her birth certificate amended accordingly - she was refused permission to marry on the basis that the Marriage Act prohibited unions between persons of the same gender.
Cassar took the Marriage Registrar to court, and on February 12 2007, after noting that the proposed union did not contravene any provision of the Marriage Act, Mr Justice Gino Camilleri upheld her request and ordered the director of Public Registry to issue the marriage banns.
But the marriage registrar appealed, and in his decision to overturn the ruling last May, Mr Justice Joseph R. Micallef observed that while the Marriage Act defined marriage as a union "between a man and a woman", Maltese law offered no legal definition of either gender.
The court therefore took into account various definitions, including an affidavit signed by the former chairman of the parliamentary bio-ethics committee, Dr Michael Axiak, who wrote: "after gender reassignment therapy, a person will have remained of the same sex as before the operation."
Mr Justice Micallef also noted that Cassar's birth certificate, allowing a change of name and gender, was only intended to protect the right to privacy and to avoid embarrassment. He therefore upheld the marriage registrar's request, and annulled the marriage banns.
Afterwards, Cassar expressed bitter disappointment at the ruling. "One court allowed me to get married but another took it away from me," she said.
Cassar went on to file a case against Malta in the European Court of Human Rights in Strasbourg - an initiative she would later admit had financially crippled her.
Representing government, the Attorney General filed submissions arguing that the reassigned gender on Cassar's State-issued identity card was intended only to "spare her embarrassment", and was not meant to entitle Cassar to legal privileges associated with the female gender.
Surprisingly, considering the sustained resistance to her demands by government's legal counsel, Cassar's case was cited by former Prime Minister Lawrence Gonzi during one of the last public meetings before the last election.
Gonzi stated that the PN would introduce gender recognition legislation for transgender persons during the next legislature should it be re-elected in government, in reply to a question from a member of the audience at an evening rally.
Gonzi also stated that the reason for which parliament never discussed the transgender recognition private member's bill - tabled by then Opposition MP Evarist Bartolo - was lack of time.
Joanne Cassar's reaction was to accuse the Gonzi administration of exploiting her case for political advantage: pointing out how the same government which now promised to enact these rights, had never removed the legal obstacles that stood in her path; and - more damningly - had even filed written submissions against her right to marry in Strasbourg.
This led former Alternattiva Demokratika chairman Michael Briguglio to call on government to stop officially opposing Joanne Cassar in her bid to marry her partner.
"Not only did the government fail to progress the legislation that was tabled through a private member's bill; but it actually fought Joanne Cassar tooth and nail all the way to the Constitutional Court to deny her the fundamental right to marry her male partner," Briguglio said. "This in spite of clear European Court of Human Rights case-law dating back to 2002 which Malta is obliged to respect."
The case in question is Christine Goodwin vs. UK, in which the ECHR found that a similar refusal to issue marriage banns had been a direct violation of Article 12 of the European Convention of Human Rights.
Even without the legal precedent, the issue of gender identity in such cases is a frequent cause for discrimination and harassment.
Gabi Calleja told MaltaToday that persons in Cassar's predicament have a considerably higher chance of encountering violent harassment than other social categories.
"Research shows that persons who underwent gender reassignment encounter more violence, including extreme violence, than gays," she said. "They also have a harder time finding employment. There is unfortunately still a lot of ignorance on the subject."
According to Calleja, society as a whole tends to use the traditional gender binary of male/female, and persons like Joanne challenge these concepts in a way that makes some people uncomfortable.
"People like to think of sexual orientation as simply a case of black or white, but the reality is more complex than that," she said. "There are over 6 billion people in the world, and yet we assume there are only two genders. But contrary to popular perception, gender is a social construct; it is not fixed at conception as many people believe. There could be other genders apart from simply male and female."