A step away from gender prejudice

The ‘Gender Identity, Gender Expression and Sex Characteristics Act’ (GIGESC), approved unanimously by Parliament last week, represents a significant milestone in the development of a country that is clearly moving forward on civil rights and minority issues.

Primarily, this bill gives legal recognition to a class of people who were previously denied any official status: and, consequently, rights. Such rights were denied until only a few years ago, when a transgender person had to fight a costly, prolonged and ultimately humiliating legal battle to secure the right to marry. 

The case of Joanne Cassar, a post-op transgender woman, threw into sharp focus the legal ambiguities that previously clouded this issue. Cassar had earlier won the legal right to change her assigned sex after undergoing gender reassignment therapy. But when she applied to the Director of Public Registry for marriage banns in order to marry her male partner, her request was refused. 

The local the law courts later ruled that the legal recognition of her status as ‘female’ was merely a convention to ‘spare her embarrassment’. The Attorney General argued in court (successfully) that Joanne Cassar was de facto ‘still a man’, even after having her gender changed through surgery. 

Eventually she took the case to the European Court of Human Rights, which had already ruled (Christine Goodwin vs UK, 2002) “…that a test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-operative transgender person. 

“There are other important factors – the acceptance of the condition of gender identity disorder by the medical professions and health authorities within Contracting States, the provision of treatment including surgery to assimilate the individual as closely as possible to the gender in which they perceive that they properly belong and the assumption by the transgender people of the social role of the assigned gender.”

This directly contradicted the rulings of the Maltese courts, and it is in part to finally address this ambiguity within our legal system that the GIGESC bill was enacted.

The new law will allow transgender people to change their official documentation to match the gender with which they identify. Once a change is effected to the birth certificates, all other documentation, including ID Cards, passports, driving licences and academic certificates will change accordingly. 

Transgender people will no longer have to go through gender reassignment surgery to change their birth certificate. Instead, a request may be submitted to the Director of Public Registry through a notarial deed, including a clear and unequivocal declaration by the applicant that one’s gender identity does not correspond to the assigned sex in the act of birth. 

The draft law regulates the procedure for change of legal gender for minors and adults alike and introduces “a positive obligation on government entities to ensure that their services meet the objectives of this Act”.

Moreover the act provides parents with the possibility to postpone the entry of a gender marker on their children’s birth certificate. Significantly, it invests people with the right to choose the gender with which they identify, removing the decision from the medical profession. 

It is now “unlawful for medical practitioners or other professionals to conduct any sex assignment treatment and/or surgical intervention on the sex characteristics of a minor which treatment and/or intervention can be deferred until the person to be treated can provide informed consent”.

The Maltese GIGESC Act is therefore also an extension of legislation to safeguard children’s rights in Malta, including those of bodily integrity, self-determination and health. It explicitly exposes the vulnerability of intersex infants, children and adolescents in medical settings, while affirming, at the same time, that this can be successfully addressed as a matter of law. 

It is arguably unique in global legislation, in that it legally recognizes the pervasive role that “social factors” play in justifying medically unnecessary procedures aimed to “normalize” intersex bodies. This makes a fundamental contribution to intersex people’s human rights, and places Malta at the vanguard of the international fight against gender discrimination.

On a broader level, this represents a crucial step towards combating a pervasive prejudice against transgender persons in Malta. The Joanne Cassar case had already exposed the extent of this prejudice, when it was argued in court that a transgender person should not be allowed to marry at all… leading to the absurd conclusion that the law had rejected her identity as a woman, despite having granted her that status itself; yet at the same time, the same law no longer recognised her as a man either.

Elsewhere there are compelling statistics to indicate that homophobia is far more acute specifically in the case of transgender persons, who are targeted by more bullying and hate crimes than any other gender-related minority. For the same reason, the risk of suicide is exponentially higher in this particular category.

The GIGESC law has meanwhile been hailed as groundbreaking, and has been described (by Global Action for Trans Equality) as a ‘clear and strong message’ to other governments and to  the World Health Organization. 

The unanimous political consensus that has now cemented around this issue, only attests to the remarkable and positive transformation Malta has experienced in recent years.