8 April 2015
Making depathologisation a matter of law: Statement from Global Action for Trans* Equality on the Maltese Act on Gender Identity, Gender Expression and Sex Characteristics
A week ago Malta passed the Gender Identity, Gender Expression and Sex Characteristics (GIGESC) Act, which encompasses, in a new and radical combination, legal recognition, protection and anti-discrimination measures.
The Act approved by parliamentary consensus on April 1st joins a growing number of similar laws that define gender identity issues as human rights issues – notably following the Yogyakarta Principles and the example posed by the Gender Identity Law passed in Argentina in 2012. Recently, Mexico and Denmark introduced new provisions similarly granting access to legal recognition in accordance with those human rights standards.
Hopefully, the Maltese Act will open the way for legal change in countries such as Chile and Ireland, where gender identity laws are being debated, and will also challenge persistent requirements that violate human rights, such as forced divorce, sterilization and psychiatric diagnoses. In this sense, the Maltese GIGESC Act contributes significantly to support trans* depathologization in the context of the revision and reform process of the International Classification of Diseases at the World Health Organization – demonstrating, once again, that pathologization can no longer be justified using outdated legal imperatives.
By introducing explicit provisions on grounds of “sex characteristics” in anti-discrimination, the Act follows the example settled by Australia, the first country in the world to establish “intersex status” as an independent protected ground.
The Maltese Act goes further, introducing a radical change to other gender identity laws – and to any other human rights legislation – in recognising a right to ‘bodily integrity and physical autonomy’ as an integral part of the Right to Gender Identity [3(d)]. In doing so, it states that “It shall be unlawful for medical practitioners or other professionals to conduct any sex assignment treatment and/or surgical intervention on the sex characteristics of a minor which treatment and/or intervention can be deferred until the person to be treated can provide informed consent. [14(1)]”
Moreover, the Act makes an explicit warning, stating that “… medical intervention which is driven by social factors without the consent of the minor, will be in violation of this Act. [14(2)]”.
The Maltese GIGESC Act not only defends children’s rights in Malta, including those of bodily integrity, self-determination and health. It also makes a fundamental contribution to intersex people’s human rights by recognizing in law the pervasive role that “social factors” play in justifying medically unnecessary procedures aimed to “normalize” intersex bodies. The Maltese Act explicitly exposes the vulnerability of intersex infants, children and adolescents in medical settings, while affirming, at the same time, that this can be successfully addressed as a matter of law. We hope this clear and strong message will be heard and followed not only by other governments around the globe, but also by the World Health Organization.
GATE celebrates not only this victory and its legal, medical and bioethical outcomes, but also the tireless effort of Maltese advocates and politicians. In particular, we celebrate with those local and international trans and intersex activists whose hard work, deep thought, and indefatigable commitment created and expanded the conceptual and political framework that made possible this and other victories. Those same activists are helping to hold the ground in many countries, while leading other governments towards the next steps forward.