Transgender case 'going straight to European Court of Human Rights' - lawyer

Updated at 12:59pm, with MGRM reaction.

In an unusual ruling that her lawyers plan to contest in Europe, the Court of Appeal acknowledged that the fundamental rights accorded to Ms Cassar by articles 8 and 12 of the convention had been breached.

But the Court also observed that other remedies were available outside of marriage, and that the State should pass legislation to formally recognize such unions while stopping short of granting full marriage rights.

The court also upheld the AG’s argument that the surgery undergone by Ms Cassar was not enough for the State to recognize her gender as female, despite having amended her birth certificate from male to female. This, the Court noted, had been done in order to respect her privacy and spare her any embarrassment.  

Cassar’s lawyers told MaltaToday that the case was now heading “straight for Strasbourg.”

“They have put Joanne Cassar through hell, we will be demanding higher compensation,” Dr Jose Herrera, who assisted Ms Cassar together with Dr David Camilleri, said.

Cassar’s battle began in May 2006, when the Registrar of Marriages refused to issue marriage banns for Cassar and her fiance on the grounds that the Marriage Act prohibited unions between persons of the same gender – and despite the fact that Cassar’s birth certificate had been amended post-surgery to reflect her gender change.

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 necessary marriage banns.

But the registrar appealed, and in his decision to overturn the ruling in May 2008, 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 Asciak, who wrote: “after gender reassignment therapy, a person will have remained of the same sex as before the operation.”

Cassar challenged this ruling in the Constitutional Court. Last November Mr Justice Raymond C. Pace cited a previous European Court of Human Rights ruling (Christine Goodwin vs. UK) which established that a ban on transgender marriage, of the kind imposed by the lower courts in previous rulings, violated Article 12 of the European Convention on Human Rights on the right to marry, to which Malta is signatory.

In their reaction, the Malta Gay Rights Movement said that the Court did not recognise the right of the post-operative transgender woman to have her affirmed gender identity recognised by law, adopting the narrowest possible interpretation of gender based solely on biological criteria.
 
"The MGRM holds that the failure of the Maltese Constitutional Court to recognise Joanne Cassar as a woman goes against the judgement of the European Court of Human Rights as expressed in Goodwin vs UK and other recent judgements and also jurisprudence of the European Court of Justice," coordinator Gabi Calleja said.
 
"As reiterated in the Proposed Gender Identity Act for Malta MGRM holds that gender identity is a matter for the individual to decide and that the State is duty bound to respect this identity by granting full and effective legal recognition. Anything less than this violates the right of the individual to self-determination and often leads to a violation of the transgender person’s rights to private and family life.
 
"This implies the right of women like Joanne Cassar who have satisfied all the legal requirements to change their gender to then marry a person of the opposite sex, in this case a man," Calleja said.