I would like to comment on an article written by Daphne Caruana Galizia (TMID, 21 July), insofar as the author presents a number of arguments regarding fundamental human rights and their enjoyment, or otherwise, by homosexual persons.

From a human rights law perspective Mrs Caruana Galizia’s arguments are not wholly correct. While it is true to affirm that Maltese law generally adopts a non-discriminatory approach to sexual orientation, it is equally important to highlight those instances where a person’s sexual orientation is in fact a ground for the denial of all or part of one’s rights. For example, Malta’s transposition of the European Union’s Freedom of Movement Directive of 2004 is currently facing infringement proceedings by the European Commission due to its blatant disregard of the directive provisions affecting same-sex couples. Furthermore, the current failure by the Maltese state to provide any form of legal recognition of same-sex couples may be seen to violate a person’s right to privacy, to marry and to found a family. On this matter, whilst Mrs Caruana Galizia is correct in affirming that this failure could potentially also affect heterosexual persons wishing to marry a person of their same gender, it is undeniable and indisputable that homosexual persons are in fact the group of people most immediately and directly affected by this legal omission. It is important to highlight that most of the rights and obligations attached to marriage may not be duplicated in a private document amongst two persons, but remain the exclusive enjoyment of married persons.

Yet non-discrimination discourse that remains at the level of the word of the law fails to appreciate that discrimination and inequality occur even where the law prohibits it, and that it is ultimately the duty of all states to not only respect one’s fundamental human rights but also to protect and to fulfil them. What Mrs Caruana Galizia calls a need for ‘acceptance’ actually translates into the legal obligation of the state to ensure that homosexual persons feel free to express their sexual orientation without fear of losing their jobs, of being prevented from entering bars, restaurants and cinemas, of being bullied and harassed, etc. This legal obligation is generally accepted for other grounds of non-discrimination such as gender, disability, age and race but less so for sexual orientation.  

In this respect, Malta does discriminate against homosexual people by the mere statement repeatedly stressed by state officials that same-sex relations are against the nation’s public policy. The implications of this standpoint run through all levels of public administration resulting in regular rights’ infringements in areas such as adoption, immigration, social welfare and fiscal benefits. Government policies are at times harsher than its own laws, particularly if the social impact of such policy statements is kept in mind.  

As with women’s rights, children’s rights, refugee rights, rights of the disabled, elderly rights, etc, gay rights do not purport to create any new category of people or any new demands on the state. They merely depart from the understanding that the core basis of fundamental human rights is their equal recognition and enjoyment by all people.

Dr Neil Falzon

Chairperson

Auditus

www.aditus.org.mt