In an article entitled "Bill allowing parents to change child's gender riddled with loopholes" (TMIS, 2 November), Kevin Schembri Orland claimed that the proposed gender identity, gender expression and sex characteristics act was riddled with loopholes. The main aim behind this legislation is to establish the right to gender identity and to protect the rights of intersex persons over their own bodies. Underpinning this right is the separation of gender identity from sex characteristics, that is, one's sense of self as male or female from one's biological sex as determined by one's chromosomes, hormones and sexual organs.

We know that for transpersons, the gender assigned at birth based on their biological sex does not correspond to their gender identity. The Bill will allow for the gender, as determined by the individual concerned, to be legally recognised. For adults, this will entail an administrative procedure through a notarial deed. For anyone under the age of 18, a court procedure is required, making access to gender identity somewhat more difficult, not just because parental consent is necessary but because the process is lengthier and will probably involve the appointment of court experts. This is unfortunate because for some children, the sense of gender identity is more fluid and develops and evolves as the child grows up. In effect, it would make more sense to have a simpler procedure for minors.

Mr Schembri Orland, who throughout his article uses incorrect terminology to refer to intersex persons, despite clear definitions provided in the Bill, claims that a provision allowing parents not to register the sex of their child on the birth certificate until the age of 14 could potentially be abused. While this possibility exists, the assumption our society makes with respect to all parents is that they will do what is in the best interests of their child. It is only when there is evidence to the contrary that the state intervenes. The loophole, therefore, does not pertain to this particular Bill but to the entire legal framework on which parental authority and care and custody of children rests. The 'loophole' exists because our society chooses to operate in a climate of trust rather than one of suspicion where parenting is concerned.

Trans and intersex children may certainly present some challenges to our educational institutions. This can be an opportunity for our schools to take another look at the way they construct gender and how this is reflected in the classroom, curriculum and school facilities. The Bill also provides a legal framework to protect not just LGBTI children, but all those whose gender expression is not stereotypically male or female. In effect, it makes it easier for all children and young people to express their femininity and masculinity in the manner which is most true to who they are and how they choose to present themselves to the world.

The other issue raised in this article relates to the fact that, unlike with the legislation currently in force, the recognition of a person's gender identity is not restricted to unmarried persons. The law therefore protects and honours the commitment entered into by the couple even when this results in a marriage between two persons of the same gender. This is no different to the provisions of the Civil Union Act, which also recognises marriages between same-sex couples conducted abroad. 

Gabi Calleja

Coordinator

MGRM