'Dictates of natural law' upheld in sex change case

The Civil Court yesterday upheld an application filed by a man who underwent gender reassignment surgery and ruled that a violation of her fundamental human rights had taken place with the director of public registry's refusal to correct her name and sex on her birth certificate.

But Mr Justice Tonio Mallia found that the director's failure to provide for the transsexual's marriage did not violate her human rights.

Mr Justice Mallia heard Nadia (Joseph) Hili's application in which she claimed she had requested the director to correct her birth certificate so that her civil status registration would conform to her new female status. However, the director had strangely refused the request despite recent judgments delivered by the Constitutional Court.

Hili claimed that this refusal, coupled with the fact that Maltese law did not provide for the exigencies of transsexuals, had caused her to suffer both emotional and legal problems.

These were tantamount to a violation of her fundamental human right to protection of family life and the right to marry and form a family, as protected by the European convention on human rights.

The European Court of Human Rights had, in a recent case decided against the United Kingdom, ruled that the state was bound to recognise transsexuals and to provide them with all rights as though they had been born of the opposite sex.

These rights included the right to marry.

Hili declared that the Marriage Act specified that marriages had to take place between a man and a woman and she submitted that for the purposes of this legislation she ought to be considered as a female.

She requested the court to declare a violation of her fundamental rights, to declare that she was a woman in terms of the Marriage Act, to order that her birth certificate be amended to reflect the change in name and sex and to provide her with a remedy.

Mr Justice Mallia upheld Hili's request for a correction on the basis of recent case law of both the European Court of Human Rights and local judgments.

The court found that the director's refusal to make the necessary correction was in violation of her fundamental human rights.

Mr Justice Mallia ordered the director to make an annotation to the applicant's birth certificate to show that applicant was now female and bore a female name.

But the judge refused to declare her a woman for the purposes of the Marriage Act remarking it would take much more to convince the court to go against the dictates of natural law and allow marriage between two people who were, at the end of the day, of the same sex.