FOURTH SECTION

Application no. 36982/11 Joanne CASSAR against Malta lodged on 1 June 2011

STATEMENT OF FACTS

The applicant, Ms Joanne Cassar , is a Maltese national who was born in 1981 and lives in Cospicua . Her application was lodged on 1 June 2011. She was represented before the Court by Dr J. Herrera, a lawyer practising in Valletta .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background of the case

The applicant was born in 1981 and was registered on her birth certificate as male. She always felt she was in fact female and in October 2004 she sought medical help. On 20 January 2005 she successfully underwent gender reassignment surgery (involving penectomy , orchidectomy , clitoroplasty , urethral reduction, labiaplasty and and penile inversion vaginoplasty ).

The applicant instituted proceedings under Article 257A of the Civil Code. On 28 June 2006 the First Hall of the Civil Court declared that the applicant had undergone an irreversible sex change and assumed the female sex (Art. 275A(2)) and it ordered that an annotation be made in the applicant ’ s birth certificate whereby the applicant ’ s details regarding sex be changed from male to female. The court further ordered that an annotation be made in respect of the applicant ’ s name, which was to be changed from Joseph to Joanne.

The relevant annotations to the birth certificate were duly made.

Subsequently, the applicant and her boyfriend, T., applied to the Director of Public Registry to issue the appropriate marriage banns. Their request was refused on an unspecified date.

In consequence, the applicant applied under Article 8 of the Marriage Act (see the “Relevant domestic law” section below) to the Civil Court (Voluntary Jurisdiction Section), requesting that it order the Director of Public Registry to issue the marriage banns.

On 12 February 2007 the Civil Court (Voluntary Jurisdiction Section) ordered the banns to be issued.

The Director of Public Registry challenged that decision before the First Hall of the Civil Court , which on 21 May 2008 upheld the Director ’ s application, finding that the decision of 12 February 2007 had been based on a premise that did not reflect reality because the relevant parties were not of the opposite sex. The court went on to find that a marriage between the applicant and a person of the male sex would be contrary to the provisions of the Marriage Act and that the annotation made on the applicant ’ s birth certificate following the relevant court judgment was only intended to protect the applicant ’ s privacy and did not give her any right to consider herself female for the purposes of marriage. It therefore revoked the decision of 12 February 2007 which had ordered that the banns be issued.

2. Constitutional redress proceedings

On 29 July 2008 the applicant instituted constitutional redress proceedings. She complained that the fact that Maltese law did not recognise transsexuals as persons of the acquired sex for all intents and purposes, including that of contracting marriage, breached her rights under Articles 8 and 12 of the Convention. Moreover, she complained that the fact that a transsexual could not marry either a male or a female constituted inhuman and degrading treatment under Article 3 of the Convention. She requested redress in the form of a remedy, in particular a declaration that the Director of Public Registry could not refuse to issue her marriage banns just because she had undergone gender reassignment surgery, and compensation.

By a judgment of 30 November 2010, the First Hall of the Civil Court (in its constitutional jurisdiction) upheld her claims in part. It found a violation of Articles 8 and 12 of the Convention. It considered that the sex change annotated on the applicant ’ s birth certificate could not only be relevant to certain circumstances which would avoid embarrassment for the applicant, but had to serve for any future event since her new gender had now been legally recognised. The fact that the law only allowed unmarried persons to make such a request implied that the legislator had in mind the effects that such a change would have on married life, and had thus limited it to unmarried persons who could in future wish to be married. Thus, the lack of recognition by the Government authorities, even for the purposes of marriage, as manifested by the Director of Public Registry ’ s refusal to issue the banns, constituted a violation of the applicant ’ s rights under Article 8. Similarly, as clearly stated in the European Court of Human Rights ’ s case-law, the same circumstances also constituted a violation of Article 12 of the Convention. The court declared that the Director of Public Registry could not refuse to issue the applicant ’ s marriage banns just because she had undergone gender reassignment surgery. Considering these declarations to be a sufficient remedy, it refused to award compensation. The court rejected her claim under Article 3 of the Convention.

On appeal, by a judgment of 23 May 2011 the Constitutional Court confirmed the part of the judgment finding a breach of Articles 8 and 12 of the Convention on the basis of different reasoning, but it overturned the part of the judgment declaring that the Director of Public Registry could not refuse to issue her marriage banns. The Constitutional Court considered that Article 8 was applicable in the present case as the applicant was denied the right to decide whether to get married or not, which was intrinsically linked to her private life. It, however, considered that the Government ’ s plea that the applicant was only phenotypically female -- namely that she only had the external genital appearance of a woman but still retained her prostate gland, which was a basic difference between males and females, and could not therefore be classified as a woman who could marry a man according to the Marriage Act -- was not devoid of merit. In fact, the applicant could not be considered a woman for all purposes of law, particularly those in relation to marriage. It further considered that to accept the meaning of marriage to include a marriage between the applicant and a man would radically change the legal nature of the relationship between man and woman according to the Marriage Act, including the relationship of those who had already contracted marriage. Seen in this light, one had to consider the rights of those persons who were already married and safeguard the institution of marriage. The Constitutional Court further considered that the European Court ’ s case-law was of little relevance, as the Goodwin case had been based on the fact that there had been major social changes in the institution of marriage since the adoption of the Convention. However, these social changes had not taken place in all of the States parties and could not be imposed by a judicial organ, which was not legislative, by means of “social engineering”. Nevertheless, although the Registrar ’ s decision was not unlawful, it did not mean that the interference with the applicant ’ s private life had been justified. In the legal situation as it stood, the applicant could neither form a registered life partnership with a man nor with a woman. It was thus, in the Constitutional Court ’ s view, the lack of legislation providing for a registered life partnership for people in the applicant ’ s position which breached the applicant ’ s Article 8 rights, as the State had failed to fulfil its positive obligation. Such a registered life partnership, which could not be a marriage and which was to be regulated by the State, would suffice as a remedy. For the same reasons, namely only because of the lack of legal provision and therefore the opportunity for the applicant to enter into a registered life partnership, and not because of her inability to marry, there had also been a violation of Article 12. The Constitutional Court considered that the remedy provided by the first-instance court (namely the declaration that the Registrar could not refuse to issue the banns under the Marriage Act) would therefore not be an appropriate remedy in the circumstances of the case. In any event, the applicant had recently broken off her engagement – therefore the banns could not be issued. It ordered a copy of the judgment to be transmitted to the Speaker of the House of Representatives.

B. Relevant domestic law

Articles 257A and 257B of the Maltese Civil Code, Chapter 16 of the Laws of Malta, in so far as relevant, read as follows:

“257A (1) It shall be lawful for any unmarried person domiciled in Malta to bring an action for an annotation regarding the particulars relating to sex which have been assigned to him or her in the act of birth.

(2) Before delivering judgement, the Court shall appoint experts to verify whether the person who has brought the action has, in fact, undergone an irreversible sex change from that indicated in the act of birth or has otherwise always belonged to such other sex.”

“257B (1) The court shall allow the plaintiff ’ s request if it is of the opinion that it has been sufficiently established that the plaintiff belongs to the sex claimed by him and that the plaintiff ’ s condition can be considered as permanent.

(2) The court may also order an annotation in the name or names of the plaintiff if it has allowed the request.”

Article 8 of the Marriage Act, Chapter 255 of the Laws of Malta, reads as follows:

“ (1) If the Registrar is of the opinion that he cannot proceed to the publication of the banns or that he cannot issue a certificate of such publication he shall notify the persons requesting the publication of his inability to do so, giving the reasons therefore.

(2) In any such case, either of the persons to be married may apply to the competent court of voluntary jurisdiction for an order directing the Registrar to publish the banns or to issue a certificate of their publication, as the case may require, and the court may, after hearing the applicant and the Registrar, give such directions as it may deem appropriate in the circumstances, and the Registrar shall act in accordance with any such directions.”

COMPLAINTS

The applicant complains under Articles 8, 12 and 13 of the Convention that she was not granted an effective remedy in respect of the breach of her rights and therefore that she is still a victim of a violation of Articles 8 and 12 of the Convention.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to marry contrary to Article 12 of the Convention? (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, ECHR 2002 ‑ VI)