A Maltese law which prevented a man who underwent a ‘sex change’ operation from marrying as a woman is to be challenged before the European Court of Human Rights.
The man had his birth certificate changed, but subsequently tried to marry another man, and was refused permission by the Maltese authorities. The case is Cassar v Malta.
The Maltese authorities said that the alteration of the birth record was intended only to protect his privacy by making his everyday life easier, but not to alter legal effects related to marriage.
The Maltese Constitutional Court ruled that Malta's impediment to marriage is justified, but considered the absence of a provision in Maltese law allowing for a “registered partnership” to be a violation of Articles 8 and 12 of the European Convention, which guarantee the right to private and family life, and the right to marry and found a family.
Subsequently, the two partners ended their relationship.
The European Centre for Law and Justice (ECLJ), which advocates for freedom of religion and the family at European level warned that a judgment against Malta, which is overwhelmingly Catholic would weaken that country's commitment to traditional marriage.
In a statement, Dr Gregor Puppinck, Director of the ECLJ, said: “A judgment against Malta would oblige this country to separate marriage from family and acknowledge the supremacy of social identity (gender) over biological identity (sex).”
Article 12 of the Convention explicitly states that “[m]en and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”.
Despite this, in 2002, the ECHR ruled in the case of Goodwin v. United Kingdom that it was “not persuaded that at the date of this case it can still be assumed that these terms [man and woman] must refer to a determination of gender by purely biological criteria”
The Court said: “In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved.
“In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable”.
However Dr Puppinck said: “What was possible for the Court to impose in 2002 would most likely be much less possible ten years later. Moreover, the cultural context of Maltese, where divorce has only been allowed since 2011, is very different from that of the United Kingdom, which has given rise to almost all the cases regarding transsexuality.”
He added that the subjectification of human rights was “one of the fundamental causes of the crises of the Court”.
Dr Puppinck said: “This subjectification, which removes human rights from their objective and universal character, has led to their brittleness and their fragmentation into a multitude of non-homogeneous individual rights.”
“The more the Court ventures in its judgments to create new subjective rights (abortion, artificial procreation, euthanasia, etc.), the more is breaks down the unity of human rights and obscures their intelligibility, and ultimately weakens the European consensus supporting human rights.
“Subjectification of human rights destroys their objectivity and their intrinsic authority: they become cultural, relative, and subject to controversy.”
Dr Puppinck said he hoped the Court would take the opportunity in the case “to correct its jurisprudence and reconnect with a more realistic and objective understanding of the right to marry and found a family”.
He said: “The refusal of the Supreme Court of Malta to take seriously the Christine Goodwin judgment is just one example, among others, of the increasing willingness of European states to moderate the 'progressivism' of the Court in its interpretation of the Convention.”