Wednesday, 10 April 2013

Malta Today: Transgender marriage victory may lead to wider discussion on LGBT rights

Actual legal change proposed by the Labour administration will not have any direct bearing on same-sex couples hoping to one day achieve full marriage equality for themselves.
Sunday 7 April 2013 - 09:41 by Raphael Vassallo

Joanne Cassar's success in her seven-year legal battle for the right to marry a male partner - being herself a post-op transsexual whose reassigned gender was recognized by the State, at least on paper - represents a rare triumph in the ongoing struggle for full equality in LGBT areas.

But while Cassar's victory was welcomed with enthusiasm among Malta's gay community and beyond, the actual legal change proposed by the incoming administration will not have any direct bearing on same-sex couples hoping to one day achieve full marriage equality for themselves.

Still, campaigners are hopeful that Cassar's case may bring about a change in perception, both of the institution of marriage itself, and also of LGBT issues as a whole.

Aditus director Neil Falzon, who drafted the gender equality bill, admits that the two issues (transgender marriage and same-sex marriage) are in themselves unrelated.

"But the case may still have an impact on the issue of same-sex marriage," he added. "For one thing, the decision to reach a settlement represents a strong move by the government towards upholding the principle of equality when applied to LGBT issues. For another, it may signal a shift in public perceptions which may lead to a broader discussion on the institution of marriage as a whole."

Falzon is optimistic that the Cassar case may impress upon the public the view that not all non-traditional relationship models are as objectionable today as they used to be in the past.

"It illustrates that the various options being discussed are no longer necessarily viewed as threatening as they may have been before."

The settlement itself had been precipitated by a lawsuit filed against Malta by Joanne Cassar in the European Court of Human Rights in Strasbourg, after being refused the opportunity to marry on the basis that Maltese law defines marriage as 'between a man and a woman".

In an earlier (local) case, the marriage registrar initially argued that the change to Cassar's documentation to reflect her reassigned gender was only intended to spare her embarrassment, but did not extend to full recognition of all the entitlements that one normally associates with the gender (including the right to marry a man).

The lower court rejected this argument and ordered the relevant marriage banns to be issued; but the decision was later overturned on appeal... leaving Cassar with no option but to pursue her case in the ECHR.

Made public on 3 April, the settlement proved to be among the very first actions taken by the incoming administration: effectively ending a seven-year legal wrangle, and opening up the possibility for all transsexuals to also marry in future (a right previously denied to this category).

In itself, however, it will do nothing to address the lack of any legally recognized partnserhips between same-sex couples: although the government is also bound by an electoral commitment to introduce some form of legally recognized 'civil union' to compensate for the lack of any form of recognition for same-sex couples.

Details however remain sketchy. Muscat has already pronounced himself 'personally' against adoption of children by same-sex partners; and it is not at all clear how the civil unions proposed by Labour will differ in any substantive way from the rights offered by the previous administration to cohabiting partners - be they same-sex couples, or siblings living under the same roof - as part of the still-born Cohabitation Bill (launched in August 2012 but never enacted, for reasons which are now history).

Of the three parties, only Alternattiva-The Green Party favoured full marriage equality; and while it fared relatively well in the March 9 election - garnering its highest share of the vote ever (5,500) but failing to elect a representative - the party is currently leaderless following the surprise resignation of Michael Briguglio as chairman.

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