Gender Identity, Gender Expression And Sex Characteristics Act :: FAQs

Posted on: 25 Mar 2019

Category: Articles, News

Chapter 540 of the Laws of Malta entitled Gender Identity, Gender Expression and Sex Characteristics Act (the “Act”) was adopted by the Maltese Parliament on the 1st April 2015 and it mainly regulates gender identification, re-identification or change of legal gender for minors and adults. The Act can be construed as a ground-breaking piece of legislation which generated certain fundamental questions.

Below is a list of FAQs and respective answers which revolve around the Act.

:: Gender Recognition Legislation And Its Effects ::

1. Does Malta operate a model of self-determination for changes to legal gender?

Yes

2.Where a person seeks to alter their legal gender within official documentation (i.e. in order to recognise their gender identity), is there a requirement for:

a). Surgery: No
b). Sterilisation: No
c). Other medical treatment: No
d). Professional/medical spouse: No
e). Permission of their spouse: No
f). a Court Order: No
g). Other: Yes – A request for gender re-identification must be made by a to the Director of Public Registry and the request shall be made by means of a note of registration and a declaratory public deed.

3. Where a person has had their legal gender altered, are their rights affected, in:

a). Marriage: Person’s rights, relationship and obligations arising out  of  parenthood  or  marriage  shall  in  no  way  be affected.
b). Succession: The person’s rights arising out of succession, including but not limited to any testamentary dispositions made in  one’s  favour,  and  any  obligations  and,  or  rights subjected to or acquired prior to the date of change of gender identity shall in no way be affected.
c). Parenthood: Person’s rights, relationship and obligations arising out of  parenthood  or  marriage  shall  in  no  way  be affected.
d). Other: Any personal or real right already acquired by third parties or any  privilege  or  hypothecary  right  of  a creditor  acquired  before  the  change  in  the  gender identity of the person shall in no way be affected.

4. If rights in marriage are affected:

a). Is the non-trans spouse required to give their consent to a change of marriage status? Yes
b). What is the outcome if consent is withheld? Court proceedings and the Court of Voluntary Jurisdiction will have the authority to deliberate on the case.

:: Gender At Birth ::

5. Is there a ban on surgery to ‘normalise’ intersex babies? Malta’s provisions regarding the “right to bodily integrity and physical autonomy” of intersex persons (Art. 14) are ground-breaking in Europe and globally. Whenever possible, the informed consent of the person concerned is the basis, and not the consent given by parents or guardians. The said article bans “sex assignment treatment and/or surgical interventions on the sex characteristic of a minor which [..] can be deferred until the person to be treated can provide informed consent.”

6. Do children need to be assigned a legal gender at birth? No.

7. Is there an alternative option to male/female? Persons who not want their gender specified on identification documents can now amend their gender details, with a neutral X marker option.

:: Minors ::

8. Can minors (i.e. persons under the age of legal responsibility) apply for legal gender recognition (i.e. establishing or altering their legal gender in official documentation)?

If so, are there:

i). age restrictions: Yes
ii).
professional/medical consent requirements: No
iii) parent/guardian consent requirements:
Yes
iv). time requirements, such as living in the desired gender for a certain amount of time: No
v). associated costs; and/or: No
vi). other requirements?: The persons exercising parental  authority  over  the minor or the tutor of the minor may file an application in the registry of the Civil Court (Voluntary Jurisdiction Section) requesting the Court to change the recorded gender and first name of the minor in order to reflect the minor’s gender identity. When an application is made on behalf of a minor, the Court shall:

(a) ensure that the best interests of the child as expressed in the Convention on the Rights of the Child be the paramount consideration; and
(b) give due  weight  to  the  views  of  the  minor  having regard to the minor’s age and maturity.

9. With respect to legal gender recognition, are there different rules for emancipated minors (i.e. minors with legal responsibility separate from their parents or guardians)? No

10. At what age can a minor be emancipated? 16

:: Non-Binary / Third Gender ::

11. Does Malta recognise a third gender (non-binary)? Yes.

:: Medical Treatment ::

12. Is gender confirmation treatment (formerly “reassignment surgery”) available? No.

:: Other ::

13. Are there sanctions for breach of the law on legal gender recognition? Yes.