The Malta Independent 20 October 2017, Friday

Nationalist Party still to review loopholes in gender identity legislation

Kevin Schembri Orland Tuesday, 4 November 2014, 14:00 Last update: about 4 years ago

The opposition will be discussing the Gender Identity Bill within the Parliamentary group, PN MP Claudette Buttigieg said yesterday.

Ms Buttigieg is currently reviewing the Gender Identity Bill and her advisors are reading through the document.

"There are many sensitive points in the Bill. We are looking into it and comparing the proposals with existing laws in other countries. We need to thread very carefully as while giving some people their rights we also need to respect the rights of others. At the end of the day we have a duty to fulfil".

Asked by this newsroom about the gay marriage loophole, where if one member of a couple changes gender, then the rights of the marriage would be upheld, she said that certain such couples in Malta already exist and it's a question of regulation. "We need to look at the legal consequences as we must not allow any abuse of laws just because they are not 100 per cent fool proof".

This bill recognises a marriage if one member of the couple chooses to change gender, with or without the surgery. Today, Civil Unions exist however no same-sex marriage is allowed even though the benefits from both are nearly identical. This would create problems in current law relating to annulments considering changing gender is grounds for an annulment, yet this bill states that the marriage would be safeguarded thus introducing the concept of same-sex marriage which could in turn require a change of the marriage act to include gay marriage on the grounds of discrimination for those who are LGBT and not already married. In addition, the spouse might in fact want an annulment, so this situation could result in a conflict.

The point of gay marriage was brought up during an interview by this newsroom with Social Dialogue Minister Helena Dalli, who did not contest that this Bill would introduce this in certain situations.

A main issue with the Gender Identity Bill, is the phrase 'Gender Identity' itself. The Bill defines Gender Identity as; "each person's internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance and, or functions by medical, surgical or other means) and other expressions of gender, including name, dress, speech and mannerisms". This terminology is very vague and open to interpretation.

The Bill, should it be accepted as-is and become law will allow for children to be left without an official gender on their birth certificate when born, however does not specify the need for the child to be intersex. Parents will then be required to announce the child's gender before the age of 14 on the basis of 'Gender Identity'. If this is the case then it is not outside the realm of possibility that some parents could abuse this situation, having wanted a girl instead of a boy, and choose not to set the child's gender at birth only to influence the young one into thinking he or she is of the opposite sex. When challenged by this, the Minister and her policy advisor couldn't fathom the idea of this happening.

Speaking with the Malta Independent, Social Dialogue Minister Helena Dalli and her Human Rights Policy Coordinator Silvan Agius said that the law itself is aimed at the full spectrum of intersex and Trans persons. "There's no restriction. Look at it this way, no-one is going to wake up one morning and say 'I want to become a man or a woman'".

"These are people trapped in the body of the opposite gender. When we reached a settlement in the case of Joanne Cassar, who wanted to get married after having the gender reassignment surgery, a mother called me up and told me 'What can we do about my 16-year-old son. He's not going to have the surgery as we can't afford it and he is afraid. He doesn't leave the house as whenever he presents his ID card or needs to go to the bank, you see a woman however he is declared a man on the documents'. I realised how important this law is after hearing the human experiences," the Minister added.

She argued that the Labour Party had promised to pass this law in the electoral manifesto. "After receiving these calls I realised the urgent need for this law. Of course they are a minority but it affects how these families live. When a member of your family is going through this fear, where people look at him differently when presenting his id card, it's a terrible situation".

A large proportion of legislation around the world tend to heavily differentiate between persons who have undergone the operation and those who haven't.

In response to this statement Mr Silvan Agius argued that this is changing. "Looking at Germany, they used to have this distinction, however whenever it went to court, the court struck those requirements down. Denmark adopted a law this year going in a direction similar to this bill". It is important to note that while the German court has struck the requirements down, the law has not yet changed.

In Spain, in order to change the name of a person, no surgical requirement is needed, however evidence of having undergone hormonal treatment for at least two years and a diagnosis of gender dysphoria (a profound state of unease or dissatisfaction, in a psychiatric context) are both prerequisites. In the UK they need only demonstrate that they have gender dysphoria, and have lived in the 'acquired gender' for two years. In Malta, should this Bill become law, a person would only be required to sign a notarial deed and sign a declaration.

In fact the term Gender Identity in this bill is almost word for word taken from the Argentinian model, Mr Agius argued. "This is a minority that requires sterilisation before they can exceed to their recognised status. It doesn't make any sense. The current Maltese law requires someone to be single (the thought at the time was that the state did not want same-sex marriages) and undergothe surgery. What this bill does is move away from this. Surely there are a number of Trans people who would still want to undergo the surgery. The law removes the medical dimension from the legal recognition".

An article containing a long interview with the Minister and her policy advisor conducted by this newsroom was published on Sunday.

 

 

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