Transexual woman Joanne Cassar has been fighting for the right to marry in Malta for the past five years, and while several courts have ruled that a ban on her being able to marry a male partner is a violation of her human rights, Cassar must now take her fight before the European Court of Human Rights to find an effective legal remedy that the lower courts have been unable to provide.
Ms Cassar’s legal saga started in 2006 when the Marriage Registrar refused to issue marriage banns although her birth certificate had been changed to indicate she was now a woman.
The appeals court ruled there was a lacuna in the law that did not allow people to enter into any form of life partnership after undergoing gender reassignment surgery.
In the appeal to the European Court yesterday, Ms Cassar asked for a declaration that the Director of Public Registry could not refuse to issue the marriage banns [sic] just because she underwent gender reassignment surgery.
Ms. Cassar underwent gender reassignment surgery in the UK when she was 22 after being diagnosed with gender identity disorder.
In a landmark 2007 ruling a judge ordered government officials to issue the appropriate documentation to permit Ms. Cassar to get married. However, the Director of Public Registry contested the ruling and in May 2008 won.
Ms. Cassar then filed a constitutional application in the First Hall of the Civil Court where she argued that not allowing her to marry a male partner amounted to a violation of her fundamental rights. The court agreed with her.
However, that decision was overturned in May of this year when an appeals court said that while Ms. Cassar’s gender change can be recorded on relevant identity documentation, she cannot be considered a woman under the country’s Marriage Act and therefore the registrar was right in denying the license. The court did note the hardship that this hole in the law presents but declined to offer a remedy.
In petitioning to the European Court of Human Rights, Ms. Cassar’s lawyers, José Herrera and David Camilleri, are quoted as saying that Cassar will also ask for compensation “due to the fact that over all these years pending these proceedings, although it has been established (by the courts) that her fundamental human rights have been breached, she has not been granted an effective remedy,”
Ms Cassar is no longer with the partner she had intended to marry, however she continues her fight as a civil rights matter.