Court rejects transsexual's marriage appeal as 'untimely'

A transsexual who went before the Constitutional Court requesting to be recognised as a woman in terms of the Marriage Act lost her case yesterday after the court ruled that the question was purely academic at this point, since the woman had not proven that the director of public registry had refused her request to get married.

Chief Justice Vincent De Gaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph Filletti in the Constitutional Court found that no violation of human rights had occurred and neither was it imminent.

The court yesterday delivered judgment in an appeal filed by Nadia (Joseph) Hili from a decision of the Civil Court.

The first court had 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 that court had found that the director's failure to provide for her marriage did not violate her human rights.

But Hili appealed, arguing that the first court had made an incorrect appreciation of the law when it had denied her the right to get married.

According to Hili, the first court had been more preoccupied with moral and theological considerations than with the legal principles at stake in this case.

The Civil Court, claimed Hili, was supposed to be a court of law and was not an ecclesiastical tribunal established to apply religious principles.

The Constitutional Court yesterday declared that Hili had not been correct when she had depicted the first court as an ecclesiastical tribunal.

There was nothing incongruous in the fact that the first court had quoted from philosophy and even from official texts of the Catholic Church in order to determine the limits of a particular fundamental human right.

One could not forgot that the Church had been among the promoters of the fundamental human rights.

When examining Hili's appeal, the Constitutional Court noted that she had requested the court to recognise her as a woman even for the purposes of the Marriage Act.

In order to invoke the protection of the constitutional court, applicant had to show that her fundamental human rights had been, were being or were about to be violated.

When the violation had not yet occurred, applicant had to prove that the violation was imminent.

Unfortunately, applicant had led the first court to carry out a purely academic exercise into the issue for it resulted from the evidence produced before the first court that Hili had a boyfriend and that the couple were contemplating matrimony.

It did not result from any evidence produced that once Hili's birth certificate was amended (as had been ordered by the first court) the Marriage Registrar was going to refuse to allow Hili to get married.

The first court ought therefore to have dismissed Hili's application insofar as this concerned her wish to get married, on the basis that this request was not timely.

It was for this reason, and this reason alone, that the Constitutional Court dismissed Hili's appeal.