Ivan Fenech’s opinion piece of April 7, entitled ‘Gay’s the new hunter’, made a number of scathing references to the Gender Identity, Gender Expression and Sex Characteristics Act.
The unanimous approval of this piece of legislation by both Government and Opposition was welcomed and celebrated by the Maltese LGBTI movement. In effect, public expressions in support of the Gender Identity, Gender Expression and Sex Characteristics Act have been made by LGBTI organisations around the world. These include the International Gay & Lesbian Human Rights Commission, Human Rights Watch, Organisation Intersex International, ILGA-Europe and Transgender Europe, to mention a few.
The legislation has been welcomed precisely because it meets all the criteria set by those most likely to be affected by it – that is trans, gender queer and intersex persons themselves. It depathologises trans identities and intersex bodies and ensures that the fundamental right to self-determination of trans, gender queer and intersex persons can be effectively exercised.
It was an intended aim of this law to simplify the process of gender recognition from a court procedure to an administrative one.
In theory, any adult may make use of the law’s provisions, and can therefore declare before a notary that they identify with the sex opposite to that assigned to them at birth. In practice we know that taking such a step is a life-changing experience and not one that individuals make lightly or without due consideration.
It is erroneous however to claim that any reference to the previous self is completely erased or, as Fenech put it, ‘like your old self never existed’. This was part of maintaining the difficult balance between the rights of the individual and that of society.
In effect, the law makes clear that a change in legal gender does not result in one losing any rights they were entitled to prior to the change nor does one become exempt from any legal obligations that pertain to them.
To give some practical examples – if one was entitled to an inheritance as a daughter, they will retain that entitlement even as a son.
Any adult can declare before a notary that they identify with the sex opposite to that assigned to them at birth
If they had loan repayments as a woman, they will still have the obligation to meet them as a man. Since the gender recognition procedure involves a public deed, traceability of the change in gender will always be possible where this is required for a legitimate aim.
The Gender Identity, Gender Expression and Sex Characteristics Act also includes a number of anti-discrimination provisions that ensure equal treatment on the grounds of gender identity.
To quote, the law states that: “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.” This includes how information related to sex and gender is collated and shared.
Fenech claims I stated that “schools would have to do away with expecting girls to wear skirts and boys trousers as part of their uniform”.
This is incorrect. I mentioned uniforms as an example of ways in which differences in gender expression are manifest in schools.
What the law now makes possible is for those children who identify as girls, to be registered in school as girls, to present themselves as girls and therefore to wear a girls’ uniform.
The law does not annihilate differences in sex. It simply recognises that for some individuals, their biological sex and gender identity are not in sync and that in such cases, the right to gender identity prevails.
Fenech questions the understanding of human rights principles of ministers Helena Dalli and Evarist Bartolo, yet it is their view that is shared and legitimated by human rights experts around the world and not the one rooted in prejudice and ignorance held by Fenech.
The education of children is, in fact, a serious business, and teaching children about equality and respect for diversity is an obligation we all share as is ensuring that our schools are inclusive of trans, gender variant and intersex children.
I am confident that this legislation will give rise to others in other parts of Europe and the world. Time will tell.
Gabi Calleja is coordinator of the Malta Gay Rights Movement and chair of the LGBTI Consultative Council.