A 29-year-old transsexual yesterday argued in court that the state recognised people like her and she therefore had the right to get married.
Joanne Cassar was making her submissions after the Attorney General appealed a ruling in which she was granted the right to marry.
Ms Cassar, who had gender reassignment surgery seven years ago, began her legal battle in September 2006 when she and her then partner applied for the marriage banns.
The Marriage Registrar refused to issue them even though Ms Cassar had legally changed her gender to female on her birth certificate after the surgery.
Last November, Mr Justice Ray Pace ruled the registrar could not have refused to issue the banns for Ms Cassar’s marriage to a man once she was now recognised as a woman.
The law as applied by the registrar, he added, did not recognise the acquired gender of a transsexual for all legal purposes including marriage. This was in breach of Ms Cassar’s fundamental human right to respect for family life and her right to marry.
The Attorney General filed an appeal.
Her lawyers, José Herrera and David Camilleri, have now argued that part of the first court’s judg-ment made reference to a section of law introduced a few years ago (Section 257A) by which transsexuals can institute a court case to have their details changed on their birth certificate.
Mr Justice Pace had stated that since the government had introduced this section, then for all intents and purposes at law, the state was recognising the transsexual as a woman. Therefore all the legal consequences followed and thus the state had to allow her to marry a man, the lawyers held.
The Director of Public Registry rebutted that this section of law had been introduced only to protect the person’s privacy and not because the state was recognising her acquired sex.
In a secondary legal argument, Ms Cassar’s lawyers said that in the case Christine Goodwin vs UK, the European Court of Human Rights had ruled that the state could prevent these people from getting married.
Regarding this point, the Director of Public Registry argued that the judgment mentioned developments in the institution of marriage which, as regulated by law, was a matter of public policy and that Maltese law provided for marriage only between a man and a woman. The director maintained that the ideas contained in that judgment were not applicable to Malta.
The Attorney General also argued that in this case, marriage went against public policy and it should be left to the state’s discretion.
However, Dr Herrera and Dr Camilleri argued that what the judgment of Goodwin vs UK stated was that the European Court felt it was time to reconsider the position of transsexuals given not only the developments in the idea of marriage but also the developments in medicine and science with regard to the transsexual’s situation.
As time went by the world of medicine and science were recognising that transsexuals had a condition that needed to be catered for. The European Court in that case said that the state could not restrict their right of marriage to such an extreme that the very essence of the right was impaired. Judgment has been deferred to the end of May.