Marriage inequality: the Bill is great news for same-sex couples, but no news for other minority groups

aditus foundation is extremely happy to see Malta adopting marriage equality legislation. It is our firm belief that all persons should be entitled to access and enjoy the right to marry and found a family, irrespectively of their sexual orientation, gender identity or other innate characteristic.

When advocating for the adoption of the Civil Unions Act, we had unequivocally stated that whilst the legal recognition of same-sex couples established through civil unions was a historical moment for Malta’s human rights progress, falling on step short of introducing marriage equality was indeed a pity.

The Bill is essentially a law of language, to the extent that what is being said is far less important than how it is being said. By introducing a series of amendments to various legal instruments, the Bill seeks to render marriage – its processes but also its ensuing rights and obligations – as gender neutral as possible in the way it is described at law and, importantly, at the political and social levels.

Although understandably challenging for some sectors, this shift in perspective by no means diminishes the personal, social and national value of marriage but rather strengthens its possibility of being conceived of and approached in as most an inclusive and welcoming approach as possible.

Yet it is ambitious and incorrect to define the Bill as an instrument that will allow all consenting adults to enjoy the right to marry, and a number of concerns ought to be flagged.

Whereas the Bill focuses almost exclusively on broadening marriage for it to include same-sex couples, it maintains the discriminatory and degrading status quo whereby persons in an irregular migration status are denied access to marriage, due to their impossibility of producing the required documentation.

The relevant authorities have done very little to seek alternative options with a view to resolving these difficulties, thereby continuing to deny marriage to an already marginalised population.

The Bill also ignores the challenges faced by refugees and migrants who remain bound by the civil status declarations they make before the Office of the Refugee Commissioner, usually within days of their arrival in Malta.

There is a need for the Government to appreciate the state of mind, thought process and personal circumstances of a person landing Malta – in many cases following a gruelling journey by boat – and declaring the status of single or married, before taking that statement as eternally binding.

Furthermore, the Bill also maintains the privileged position enjoyed by the Catholic marriages, whereby these are – if validly contracted – recognised by the State, and have the same civil effects as a marriage celebrated under the Marriage Act.

In an increasingly diverse Maltese society, where religious freedom and non-discrimination are Constitutionally protected, there is no reason why a revised Marriage Act should continue to exclude such recognition to marriages validly celebrated according to the rites of other religions and denominations.

aditus foundation also feels that the Bill needs to incorporate or trigger further amendments to truly ensure gender equality in marriage, beyond the linguistic changes proposed in the Bill.

Examples of existing practices that act against the role of women in marriage, and therefore in society, include presumptions made (in practice, now in law) for the purposes of inland revenue and social security, as well as the impossibility of new fathers to spend quality time with their children.

aditus foundation therefore welcomes the Bill and is looking forward to appreciating its dramatic impact on the LGBTIQ+ community.

We however strongly urge the Ministry to revise the Bill in order for it to truly fulfil its stated purpose: “to modernise the institution of marriage and ensure that all consenting, adult couples have the legal right to enter into marriage.”

This press release is accompanied by our detailed commentary on the Bill.

Worlds apart on a tiny island – our Director’s Talking Point on The Times

Available here: http://www.timesofmalta.com/articles/view/20161102/opinion/worlds-apart-on-a-tiny-island.629741


Some weeks ago, Mina Tolu, a young Maltese trans activist, corrected actress-activist Emma Watson when the latter referred to the former as “she” instead of the preferred “they”. Also some weeks ago, Fathi Elhadi Eldeeb was treated for serious injuries following what he described as a beating by six bouncers that left him unconscious.

The distance between these two personal experiences is staggeringly vast, and should be yet another eye-opener on Malta’s understanding and exploitation of human rights.

Enter Mina, whose affirmation of their non-binary gender identity is representative of the giant leaps forward made in Malta in finally recognising the equal human dignity of lesbian, gay, trans and intersex persons.

Understandably confusing to many, pronoun choice is of course not a mere linguistic flair but a direct rejection of the very idea that all in nature is either male or female. In challenging such a deeply entrenched understanding of the world, it almost pokes fun at the national panic we witnessed at the crumbling of other, possibly far more constructed notions, such as marriage and the family.

The point is that in just a couple of years, Malta has come an extremely long way. Non-discrimination on grounds of sexual orientation, gender identity and gender expression is protected by our Constitution, and hate crime legislation includes the same grounds in its protection.

Civil unions extend to couples – whether heterosexual or homosexual – the full package of rights and obligations found in marriage, and changing one’s gender no longer requires forced sterilisation but may be effected with a mere notarial declaration.

Across the government, ministries are adopting technical policies that seek to ensure the implementation of these legal norms within their areas of responsibility such as schools, the health sector and prisons.

Pronoun choice is of course not a mere linguistic flair but a direct rejection of the very idea that all in nature is either male or female. Just earlier this week, Parliament started discussing Bills to depathologise LGBTIQ+ identities, thereby taking a proud stand against international criteria, and to criminalise conversion practices. Exit Mina.

Enter Fathi, whose story is the most distant point on the human rights spectrum to Mina’s. His is essentially an experience of isolation. Or rather, he suffers from the intentional and strategic social exclusion perpetuated on a daily basis at far too many political and social levels in Malta.

The point is that years have passed since Malta saw the first refugees arriving by boat, and there is still no political or national effort to truly engage with them.

Malta’s detention reform, coming after years of advocacy, international criticism and judicial condemnations, remains ineffective in practice. Although the reform removed the automatic detention of migrants and asylum seekers in an irregular situation, detention remains the first and only option for the police.

Despite the reform introducing extremely strict grounds for detaining asylum seekers, in line with Malta’s European Union obligations, they are being detained even where no grounds exist and when their detention proves to be unnecessary.

Refugees fleeing war and human rights violations – Iranians, Iraqis, Libyans, Syrians – are prosecuted and imprisoned because their only way of reaching safety is by using false passports.

It is worth remembering that these prosecutions and prison sentences are in flagrant breach of Malta’s international legal obligations.

Refugee integration is almost a national taboo. Apart from a vague document published by the Civil Liberties Ministry in 2015, Malta stubbornly refuses to talk about – let alone act on – pressing integration issues.

Public entities that deal with migrants and refugees remain desperately understaffed and under-resourced, some displaying attitudes that include dismissal, scorn or outright racism.

The country’s approach to refugees remains captured by the desolate units at Ħal Far, miserable homes to those refugees who were lucky or brave enough to flee their homes. Exit Fathi.

It is clear that no side of Parliament is keen on showing any form of political leadership in the area of migration, excluding of course that aspect of migration that results in the purchase of Maltese citizenship.

The kind of leadership displayed in relation to the LGBTIQ+ community is brave and transformative, insofar as it is adamant on bringing about cultural changes in support of fundamental human rights.

Yet it is also an opportunistic and selective leadership that is just as adamant on ignoring Fathi and all the other inconvenient minority groups in Malta.


Court Action: “Malta cannot wave the LGBTIQ flag, here and overseas, if it refuses to protect the most vulnerable and marginalised persons in the community.”

On 12 July we filed a human rights application in Court, together with our Litigation Partners Mifsud and Mifsud Advocates, on behalf of 7 trans women currently inmates at Corradino Correctional Facility.

The 7 women are alleging that their experiences in Corradino amount to serious violations of their right to be protected from inhuman and degrading treatment, their right to a private life and their right to be free from discrimination.

Our application stresses the duty of Government to ensure the dignified treatment and protection of all inmates, with specific attention required for particular groups persons such as vulnerable groups.

This particular attention is also required in the context of assessments as to whether treatment amounts to inhuman and degrading under the European Convention on Human Rights and the Constitution of Malta.

“Our application comes after years of battling with Government, demanding guarantees of the physical and psychological safety of our clients and repeatedly offering our support to facilitate this process.

The application is, in its essence, seeking justice for the humiliation suffered by these woman as a direct consequence of Government action.

Malta cannot wave the LGBTIQ flag, here and overseas, if it refuses to protect the most vulnerable and marginalised persons in the community.” (Dr. Neil Falzon, aditus foundation Director)

The case was filed against the Director of Prisons and of the Minister for Home Affairs and National Security.


Trans, gender variant & intersex students: securing safe learning environments that promote human rights enjoyment

On Monday 29 February, together with our project partners MGRM, the Ministry for Education and Employment and the Ministry for Social Dialogue, Consumer Affairs and Civil Liberties, we launched the research report ‘Sensitivity, Safety and Strength: An Inter-agency Review of Malta’s Policy on Trans, Gender Variant and Intersex Students‘.

The report was researched in the context of the project that sought to assess the actual impact of the June 2015 national policy on trans, gender variant and intersex students.

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Two primary goals drove the report’s spirit and methodology: to secure a safe learning environment for all students, and to support the full enjoyment of all their fundamental human rights. With this value approach in mind, our research conducted a series of stakeholder meetings in order to assess the actual impact of the June 2015 policy.

A Policy Assessment Tool was designed and presented, largely along the lines of the human rights indicator model promoted by the United Nations High Commissioner for Human Rights. The Tool is intended to be the basis for regular, comparative policy assessments that would identify implementation trends, challenges and actual impact on the intended target groups/themes.

Our report makes a number of recommendations, including:

  1. ensure access by the school community to information on services provided by community-based organisations;
  2. engage in effective out-reach to Church and Independent Schools, in order for them to endorse the June 2015 policy and to participate in sharing of best practices, data collation and national monitoring exercises;
  3. design and implement a structured training programme on LGBTIQ matters in schools, starting from professional training at the University of Malta and following with on-going professional growth;
  4. provide schools with guidelines on attire and physical appearance (e.g. are boys allowed to wear ear-rings or to grow their hair?);

We were happy that this project enabled us to to work hand in hand with NGO and institutional partners, on the basis of a common understanding of the need to ensure a rights-based and child-centric approach to this sensitive issue. This is definitely a project implementation methodology that we will seek to follow in other areas.


Conversion therapy: not so straightforward as you might think

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On 15 December 2015 the Ministry for Social Dialogue, Consumer Affairs and Civil Liberties (MSDC) presented a Bill in Parliament, entitled ‘Affirmation of Sexual Orientation, Gender Identity and Gender Expression ACt, 2015’. Following the Bill’s presentation, MSDC launched a public consultation on the Bill.

The Bill and public consultation are part of a broader process in which aditus foundation has been participating as member of the LGBTIQ Consultative Council within MSDC. In this process, we have submitted several technical comments on the Bill’s earlier versions and also published (July 2015) a Policy Paper I: Prohibition of Sexual Orientation, Gender Identity/Expression Conversion Therapy’.

The submissions we presented today to MSDC are based on this Policy Paper, with the addition of specific comments on the Bill as publicly presented in December 2015.

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“Our comments and position are based on a more subtle approach towards conversion therapy, in an attempt to reconcile the various fundamental human rights at play in such contexts, namely: religious freedom, freedom of expression, freedom from inhuman and degrading treatment, right to privacy and family life (in no particular order).

We are keen to reiterate that banning conversion therapy should not be seen as an end in itself, as this could be described as blind and invasive.

The idea of banning conversion therapy should however be entrenched in the State’s interest to (1) prevent practices that claim to be based on medical evidence, when they are not and (2) to protect vulnerable members of society from harmful practices.” [/su_box]