Retired European Court of Human Rights Judge Giovanni Bonello finds it bizarre that a child could effectively change his gender under the proposed Gender Identity Bill, however not be of age for consensual sex.
Judge Bonello agrees that certain aspects of the Gender Identity Bill are vague and could see certain unforeseen circumstances.
"Conceptually, this bill is a giant step towards the unexplored. Malta usually models its laws on UK, EU or Continental models. I am not aware what, if any, model was used in the drafting of this complex and very far-reaching Bill. I believe it is always sensible and prudent to tap into the acquired experience of other established legal systems, rather than experiment in-house with the unknown and the unforeseeable. The object of the Bill is very obviously praiseworthy, as any measure meant to give dignity and equality to the individual inevitably is. At the same time, a proper balance must always be drawn between the sacrosanct rights of the individual as against the interests of other individuals and of the community as a whole".
"I subscribe wholeheartedly to the values this Bill aims to promote. I only hope that its details, consequences and implementations have been properly thought through".
Regarding a child's ability to effectively have his gender changed, Judge Bonello said that "it sounds bizarre to me that an 'under age' child can give an informed consent on something as fundamental as gender identity, but then cannot give a valid consent to consensual sex, or to entering into a simple contract of hire-purchase".
It is important to note that the Bill does grant certain protection to children, however if the child has no gender registered to begin with (which will be possible should this Bill become law), then these same protections are technically not applicable within the Bill. On this note Judge Bonello believes that this is one of the unclear areas of the Bill, "which can be strengthened during the parliamentary debate".
On the same topic, Aditus Foundation Director Neil Falzon has argued that regardless of this issue other laws are in place to protect minors. Dr Falzon explained that other laws in Malta defend the rights of Children and in situations of abuse certain organisations are likely to step in, like AgenzijaAppogg, he said. "The laws protecting children in this country are strong and systems are in place to prevent parents from violating children's rights".
The Bill defines Gender Identity as; "gender identity refers to 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 is a very vague definition, thus leaving its interpretation wide-open.
Judge Bonello explained that "any vagueness in definition invariably results in arbitrariness in applying the law. It gives rise to conflicting interpretations, and makes judges the lawmakers. Surely that is not desirable in a legal system that operates under the rule of law, in which legal norms must be accessible in substance and foreseeable in their effects".
Bill could have minor adverse practical effects
The change of gender of a child can come with some rather problematic effects. "In practice, although it is meant to protect the child, it can have minor adverse practical effects. Take schools which are not co-educational. Would the non-gendered child be able to attend both boys' and girls' schools, or would the child fall foul of either? Is the Bill indirectly introducing compulsory co-education? If legacies or endowments are left specifically in favour of males of females (ex. for their further education or as marriage dowries), would that disqualify non-gendered individuals or rectified-gender ones?" Judge Bonello asks.
During an interview with Social Dialogue Minister Helena Dalli and her Policy Coordinator on Human Rights SilvanAgius, it was said that state schools are turning 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," Mr Agius had argued.
The Bill states "a person's rights, relationship and obligations arising out of parenthood or marriage shall in no way be affected". This basically brings out a myriad of questions relating to the possibility of Gay marriage. "It certainly introduces through the back-door the notion of same-sex marriage.Also, does it make illegal, or annullable, even retrospectively, endowments made in favour of a person of a particular gender? Does it undermine gender quotas?" Judge Bonello queried.
Judge Bonello argued that It is not clear whether the provisions of the Bill that enable gender to be rectified by notarial intervention can be availed of only once. The Bill seems to imply that any subsequent rectifications can be made by court order. This means that a person can, in theory, switch gender any number of times. Is this what the legislator really wants? Also, the total secrecy of the registrations is there for a very laudable reason: to protect the privacy of the individual. This privacy veil can only be lifted by court order. I believe it would be best if the Bill were to indicate when and to what extent the court can intervene, and at whose request".