The Gender Identity Bill proposed by the Social Dialogue Ministry last month is littered with loopholes and a number of policies that could be open to abuse.
The main idea behind the bill is to allow people to change their gender without having to undergo surgery. The bill also affects children.
Interviewing Social Dialogue Minister Helena Dalli, along with her Policy Coordinator on Human Rights Silvan Agius, it becomes clear that in order to change a child's gender, the rights of the child are at the forefront. However, if parents decide not to give the child a gender at birth, which would be allowed should this Bill be made law, then the same protection is not available.
The bill states: "The persons exercising parental authority over the minor or the tutor of the minor may file an application in the registry of the Civil Court (Voluntary Jurisdiction Section) requesting the Court to change the recorded gender and first name of the minor in order to reflect the minor's gender identity".
This would include certain safeguards where the court will ensure that the best interests of the child, as expressed in the Convention on the Rights of the Child, be the paramount consideration and, insofar as is practicable, give due weight to the views of the minor having regard to the minor's age and maturity.
As such, parents could apply for their children's gender to be changed. However, would this not create serious problems for same-sex schools? "You are right, yes," the Minister said. "We have two cases running right now, one of which is a child who is a boy and dresses as a girl. And she is being brought up as a girl. They have these problems, yes, and we are sorting them out with the Education Department. These are the realities and we ask ourselves how we, as legislators, can improve their lives". This child is now five years old. "They had someone in the family who was transgender as well," Dr Dalli added.
Mr Agius mentioned that the Ministry sounded out a number of experts on this particular case and the family had a meeting at which the Education Minister was also present. "The parents were relieved to find out that the gender identity of their child would be respected. We are not speaking about random cases where the parents want to carry out an experiment - this is not the case. With regard to children, the procedure is not simple and a whole court procedure is needed".
The extreme example as a result of a loop-hole
Should it be made law, the bill will change Malta's Civil Rights legislation so that there is no requirement for a child to be given a gender at birth. The law also states: "The persons exercising parental authority over the minor, or the tutor of the minor whose gender has not been declared at birth, shall, before the minor attains the age of 14, by means of a public deed, declare the gender of the minor".
This basically means that a child without a gender would need to be given one by the age of 14. The main problem here is that none of the previously aforementioned legal protections or the need to go to Court as a child does when a request for change of gender is made, are present. This situation would be fine for hermaphrodite children, but the law is not restricted to them.
Mr Agius said: "Looking at the whole law, while having 'trans' and hermaphrodite people in mind it does not specifically refer to them as it gives the right to each and every individual, in the same way civil unions were not restricted to same-sex partners. What happens right now is that both the parents and the midwife must declare a sex in a very short period of time".
Minister Dalli argues that in the case of hermaphrodite people: "Instead of having to operate straightaway, this is another option. Through a conference held here last year, we could see people who had had an operation immediately and had grown up feeling like the other gender. So we said: 'listen, let the child develop first'."
The fact that parents would not be required to give the gender of the child could, in extreme circumstances, be abused. If parents are depressed when a child is born, or perhaps wanted a girl instead of a boy, or a number of other extreme scenarios, they could submit a false gender for the child. On hearing this statement, Dr Dalli said: "There will be teams of psychologists and experts who would be able to tell this. I think - or at least I hope - parents will consider the best interests of the child. Experts will be involved all the way, assessing the child's progress to see which way it is going".
However, there is a problem with the Minister's statement. As previously mentioned, the legal protection given to children who wish to change gender is not available to those without a gender. "If parents purposely and wrongly declare the gender of the child then they would in fact be going against the provisions of this Act, which protects the individual's gender identity, in this case the child's," Mr Agius explained.
What about parents who have a strong influence over a child? Could this not be abused? Mr Agius argued that this can happen already. "If you have a child and you provide colours and items for the opposite gender from birth, you are still heavily influencing the growth of that child. In fact, the only difference between the present and the future is the fact that the parents will be allowed to declare the gender of their child at a later stage. Surely, not many parents will be taking advantage of this. It's the ones who need it the most that will do this. I honestly cannot fathom the idea of parents saying: 'Ok, we have this option, let's keep it open just for the sake of it".
The problem of same-sex schools
Should the child have a gender change, but not a surgical sex change, and be in a same-sex school, would this not effectively put the other children in an awkward situation when, say, using the bathroom?
Dr Dalli said: "Yesterday, I was with someone who is transgender, who is now an adult. She used to go to a boys school and was badly bullied, being called 'sissy', etc. The reality of bullying already exists. The fact that we are discussing a law nationally and bringing awareness of this issue to the forefront will hopefully filter down to the children and the teachers. When aware that bullying is happening due to this situation, they would be more informed that these children are not acting this way deliberately but because it is in their nature. Sometimes laws help educate society rather than vice-versa. In this case the law is trying to give these people their rights. What could I say to a young girl who came to me two weeks ago and couldn't find a job as she has a boy's name? It's discrimination really," she said.
Mr Agius added that state schools are becoming unisex and in instances where this child would not be able to remain in a same-sex school for one reason or another there are always state schools. "Also, through cooperation between the Education Ministry and the Social Solidarity Ministry, a whole policy specifically dedicated to the areas being proposed by this bill is coming out to regulate all state schools. This is not just a law out of the blue but a whole system coming into place".
With regard to the use of surgery to change a child's sex, Minister Dalli said: "If the parents are ok with the child undergoing surgery, the parents would need to wait until the child is about 10 years old, so even from the medical perspective they don't perform surgery so early".
In this situation: "A child cannot be operated on in order to change sex until it is capable of providing informed consent. An inter-disciplinary team will also be set up to ensure the best interests of the child are followed in cases where parents are exercising parental authority".
Same-sex marriage technically possible
The law states that "a person's rights, relationship and obligations arising out of parenthood or marriage shall in no way be affected". Herein lies a major problem. Malta does not recognise same-sex marriage, but it does recognise civil unions. This phrase in the bill basically means that if already married, and your partner decides to change sex, you would still be married, thus having an official gay marriage, or at the very least resulting in very interesting legal arguments being brought to the forefront.
The Minister and her Policy Advisor did not challenge my reasoning during the interview. When asked bluntly whether the marriage would still stand, Mr Agius replied: "Yes. In fact, we are protecting the family unit this way and thus it would not be broken up because one of the spouses is undergoing a legal change of gender. Now put this in perspective. What is in the person's interest, the family's interest and society's interest? The important thing is that families remain together. As to whether a marriage would be recognised between people of the same sex, well - that is already the case with civil unions."
Dr Dalli then interrupted and said: "When you look at it from the perspective of a person's rights, from a technical point of view they are the same. A marriage already existed so in this case they would still be married."
Challenged with the question as to whether or not the spouse would have a say in their partner's decision to change their gender identity, say for example if the wife or husband objects, Mr Agius said that the law is very clear: "The right to gender identity is an individual right. If a spouse is unhappy then there is the right to separate and/or divorce".
The Minister said she knew of a case where the husband began to live as a woman and the couple decided to continue living together as two women. "However, obviously the other party cannot impede someone from changing their gender. If you are living artificially and are not comfortable in your own skin, I cannot imagine that this would result in a good relationship.
"In fact, a number of couples have split up over the years precisely because of this requirement. People are torn between keeping their relationship and having their identity recognised. This is not as simple as divorcing your partner and re-entering a civil union, as a number of entitlements relate to the number of years of marriage. Actually allowing the couple to stay together is the most respectful route".
Another argument springs to mind. Since this policy will effectively introduce same-sex marriage in these circumstances and the person would need to change his or her birth certificate to respect the gender change and possibly include a name change, then would this not be grounds for an annulment, considering that same-sex marriage is not recognised in Malta? If so, then the policy of allowing the marriage to continue means that an annulment is not possible or could result in a legal battle. The reason for this point is that in an annulment, property is not divided, yet through a divorce it is.
Faced with this question, after a brief pause Mr Agius said: "Well - that would need to be decided by the court".
As an interesting point, in order to reverse the gender change procedure, the case would need to be taken to court.
Concluding the interview, Dr Dalli said that this bill had gone through the consultative council and is now available for public consultation. Following this, she said, the second reading in Parliament will take place where discussions will continue, adding that will be the perfect time for such discussions to take place.