A Model for Ireland: Malta’s Gender Identity, Gender Expression and Sex Characteristics Act
On April 1, 2015, the Maltese Parliament unanimously passed the Gender Identity, Gender Expression and Sex Characteristics Act (“GIGESC Act”). The statute, which radically amends Malta’s rules for recognising preferred gender, has been hailed as a “groundbreaking human rights milestone” for transgender individuals in Europe. The GIGESC Act affirms the bodily integrity of both transgender and intersex persons, while creating greater non-discrimination protections in both public and private spheres. The new law also provides recognition for married individuals, and those who are below the age of majority (two groups which have historically been omitted from gender recognition in Europe). For Irish law makers, who intend to enact gender recognition legislation later this year, Malta should stand as a “best practice” model, illustrating how States can officially acknowledge their citizens’ preferred gender without compromising important human rights standards.
Article 3(1)(a) of the GIGESC Act includes the broad statement that all citizens of Malta have the right to “the recognition of their gender identity”. Since the landmark European Court of Human Rights decision in Goodwin v United Kingdom (affirmed by the Irish High Court in Foy v Registrar Gender (No 2)), Contracting States to the European Convention on Human Rights have been under an obligation to recognise preferred gender. However, this right has been qualified in two respects. Firstly, in Goodwin and subsequently case law, the Strasbourg Court speaks only in terms of “post-operative transsexuals”. Goodwin is not authority for a more general right to self-determination, enjoyed by all trans* individuals irrespective of their medical status. Similarly, Goodwin compels Contracting States to recognise preferred gender, but sets down no specific guidelines (or requirements) for how recognition must be introduced. By affirming the right to “the recognition of…gender identity”, without further qualification or restriction, the GIGESC Act sets an important precedent in recognising the agency and self-identify of trans* persons.
Since 1972, when Sweden first extended legal recognition of preferred gender, national rules have been characterised by strict, highly invasive medical requirements. Indeed, in that first Swedish law, applicants for recognition were required to prove medical sterilisation before completing a legal transition. Sterilisation and forced gender surgeries are common place in Europe’s gender recognition schemes, having been recently reaffirmed by courts and legislatures in Belgium, France and the Czech Republic. The requirement to undergo physical interventions as a pre-condition for State recognition is an intolerable burden upon trans* communities. It directly violates the rights to bodily integrity, private life, family life and the highest attainable standard of health. Medical pre-conditions place legal gender recognition out of reach for many sections of Europe’s trans* population. Since 2004, a small (but growing) number of jurisdictions have moved away from forced surgery and sterilisation. Article 3(4) of the GIGESC Act now expressly states that applicants for recognition “shall not be required to provide proof of a surgical procedure for total or partial genital reassignment, hormonal therapies or any other psychiatric, psychological or medical treatment to make use of the right to gender identity.” This declaration – while perhaps obvious to many observers – is a powerful affirmation of the physical integrity of trans* individuals. While the Irish Government does not plan to enforce medical intervention as a condition for gender recognition in this jurisdiction, law makers would be well advised to adopt a similar provision to art. 3(4) in order to confirm, and promote, the bodily integrity rights of trans* persons in Ireland.
In terms of legal gender recognition, there are three important points of departure between the GIGESC Act and Ireland’s proposed laws. First, art. 3(2)(a) provides “a person’s rights, relationship and obligations arising out of parenthood or marriage shall in no way be affected” by obtaining legal gender recognition. This stands in sharp contrast with the proposed Irish statute which, pending the successful passage of the Marriage Equality referendum in May, proposes that Irish trans* persons should be required to divorce before obtaining recognition. In other European jurisdictions, such as Spain and the Netherlands, “forced divorce” has been omitted because, by the time those jurisdictions introduced, or reformed, their gender recognition laws, same-gender marriage rights were already available. However, Malta stands in a similar situation to Ireland. Malta currently recognises civil partnerships (with adoption rights) but has strong legal prohibitions on same-gender marriage. It is interesting that, adopting a human rights-centred approach, Malta has been able – as many human rights advocates have recommended – to conceptually separate sexual orientation and gender identity recognition.
Another important divergence with the new Maltese law is the proposed status of Irish trans* youth. In Ireland, legal gender recognition will not apply to individuals under the age of 16 years, while persons aged between 16 and 17 years will be subject to an onerous (probably impossible) four-part application procedure. By contrast, Article 7(1) of the GIGESC Act proves that “the persons exercising parental authority over the minor or the tutor of the minor may file an application in the registry of the Civil Court (Voluntary Jurisdiction Section) requesting the Court to change the recorded gender and first name of the minor in order to reflect the minor’s gender identity.” The Maltese law is legal confirmation of what medical science researchers have been increasingly discovering: many trans* young persons are capable of expressing a stable gender identity from an early age, and it is not in the interests of those children to require that they continue to live birth assigned gender throughout adolescence. In considering an application, the Court must consider the “best interests of the child as expressed in the Convention on the Rights of the Child.” In Ireland’s proposed law, there is also reference to the “best interests of the child”. However, in a bizarre turn of events, which appear both intuitively and intellectually against child welfare, such “best interests” will only be invoked to deny a minor their gender recognition, rather than creating a possible exception to the normal age requirements.
Perhaps the most fundamental difference between the Irish and Maltese laws is the weight given to self-identification. Following similar moves in Argentina and Denmark (with proposed changes in Sweden and Norway), Malta has adopted a model of self-declaration. That means that, for the purposes of defining legal gender, a person’s own experience and definition of gender is paramount. Under art 5(b) of the GIGESC Act, an applicant for legal gender recognition need only provide a “clear, unequivocal and informed declaration…that one’s gender identity does not correspond to the assigned sex in the act of birth”. There is no need for medical intervention nor medical supervision. The Maltese law recognises that, as the persons who live and experience their gender on a daily basis, trans* individuals are best placed to define their legal identity. Considerations of fraud or abuse – which although frequently raised have little evidential support – were not sufficient to prevent the Maltese legislature from enacting a regime which responds to the needs and lived-experience of the trans* community. By contrast, in Ireland, the proposed law would subject legal recognition to the supervision of a primary medical practitioner. While applicants for recognition would not be required to undergo medical treatment, an endocrinologist or psychiatrist (with the possible future extension to General Practitioners) would have to certify that the applicant has transitioned/is transitioning and understands the consequences of seeking gender recognition. While some have claimed that there is little substantive difference between the proposed Irish scheme and self-declaration, surely there is huge symbolic importance in requiring a medical officer not only to tell you who you are, but also to affirm that you are capable of understanding who you are?
As a final note, there are three extremely important additional provisions contained in the GIGESC Act. Firstly, the Maltese law provides a general prohibition on genital surgery for intersex youth. In recent years, there has been growing awareness of the practice of surgically altering the genitalia of intersex infants. These procedures are frequently undertaken without consideration for informed consent and with little thought about the future consequences for the children involved, particularly the gender identity that they infants will develop. Article 14 (1) states that “[i]t shall be unlawful for medical practitioners or other professionals to conduct any sex assignment treatment and/or surgical intervention on the sex characteristics of a minor which treatment and/or intervention can be deferred until the person to be treated can provide informed consent”. Second, where a child is born with ambiguous genital, the GIGESC Act does not require an immediate gender designation. Rather, parents may wait until the child reaches a sufficient age (with a maximum date of 18 years) to register the child’s identity, having regard to that child’s individual lived-experience of gender identity. Finally, unlike many other gender recognition laws – including the landmark statutes in Argentina and Denmark, the GIGESC Act specifically affirms the non-discrimination of trans* individuals. In particular, art. 13(1) provides that “[e]very norm, regulation or procedure must respect the right to gender identity. No norm or regulation of procedure may limit, restrict, or annul the exercise of the right to gender identity, and all norms must always be interpreted and enforced in a manner that favours access to this right.”