Transsexual insists on right to apply for marriage banns

A court ruling, allowing a transsexual to alter her birth certificate from male to female following surgery, ought to be applicable for all legal intents and purposes, including marriage.

This was maintained in a reply filed by a transsexual after the director of Public Registry filed an application appealing a decision in which a court ordered that marriage banns be issued for the transsexual and her male partner.

Mr Justice Gino Camilleri last month ordered the director of Public Registry to issue the marriage banns after noting that the union between the transsexual, now a woman, and her male partner did not contravene any provision of the Marriage Act. (The ruling came after another court authorised the transsexual's gender in the birth certificate to be changed from male to female.) The director of Public Registry then filed an application requesting the reversal of the court decree permitting marriage banns to be issued.

In his application, the director argued that the change in the act of birth was only intended to protect the right to privacy and to avoid embarrassment. Such a change, the director argued, should not mean that the person is considered a female for the purpose of marriage because the surgery was cosmetic and, therefore, the person involved was essentially still a man.

In a reply to the application, filed yesterday, the transsexual argued that, contrary to what the director claimed, the change in the act of birth was not limited to protect the right to privacy and to avoid embarrassment. In allowing changes to be made to the birth certificate, the court had declared that she had undergone irreversible gender reassignment. The court then applied the article 257(A) of the Civil Code that states: "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".

The transsexual argued that the court ruling and the law did not contain limitations and, therefore, the change of her gender (in the birth certificate) ought to apply for all legal purposes, and that included marriage.

The director's application ought to be turned down as there was nothing in the ruling that went against the Marriage Act or against public order when it came to the prospective marriage.

In a ruling handed down last week, Mr Justice Joseph R. Micallef upheld an application filed by the director of Public Registry and ruled that the marriage banns for the transsexual must not be issued within 40 days of the ruling. It seemed wise not to do anything that could prejudice the case of either party until the appeal application was decided on, the court argued.

Lawyers José Herrera and David Camilleri signed the reply.