Maurice's barbaric YAWP

14th April, 2015

ACT No. XI of 2015

AN ACT for the recognition and registration of the gender of a person and to regulate the effects of such a change, as well as the recognition and protection of the sex characteristics of a person.

BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same as follows:-

1.The short title of this Act is the Gender Identity, Gender Expression and Sex Characteristics Act, 2015.

2.In this Act, unless the context otherwise requires:

"Director" means the Director for Public Registry;

"gender expression" refers to each person’s manifestation of their gender identity, and/or the one that is perceived by others;

"gender identity" refers to each person’s internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance and/or functions by medical, surgical or other means) and other expressions of gender, including name, dress, speech and mannerisms;

"gender marker" refers to the identifier which classifies persons within a particular sex category;

"interdisciplinary team" refers to the team established by article 14;

"Minister" means the Minister responsible for equality;

"minor" means a person who has not as yet attained the age of eighteen years;

"Notary" means a person holding a warrant to practise as a Notary Public in Malta in accordance with the Notarial Profession and Notarial Archives Act; and

"sex characteristics" refers to the chromosomal, gondal and anatomical features of a person, which include primary characteristics such as reproductive organs and genitalia and/or in chromosomal structures and hormones; and secondary characteristics such as muscle mass, hair distribution, breasts and/or structure.

3. (1) All persons being citizens of Malta have the right to –

(a) the recognition of their gender identity;

(b) the free development of their person according to their gender identity;

(c) be treated according to their gender identity and, particularly, to be identified in that way in the documents providing their identity therein; and

(d) bodily integrity and physical autonomy.

(2) Without prejudice to any provision of this Act –

(a) a person’s rights, relationship and obligations arising out of parenthood or marriage shall in no way be affected; and

(b) 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) 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.

(3) The gender identity of the individual shall be respected at all times.

(4)The person shall not be required to provide proof of asurgical procedure for total or partial genital reassignment, hormonal therapies or any other psychiatric, psychological or medical treatment to make use of the right to gender identity.

4.(1) It shall be the right of every person who is a Maltese citizen to request the Director to change the recorded gender and, or first name and, first name, if the person so wishes to change the first name, in order to reflect that person’s self determined gender identity.

(2) The request shall be made by means of a note of enrolment in accordance with article 5(2).

(3) The Director shall not require any other evidence other than the declaratory public deed published in accordance with article5.

(4) The Director shall within fifteen days from the filing of the note of enrolment by the Notary at the public registry, enter a note in the act of birth of the applicant.

(5) The provisions of article 249 of the Civil Code shall mutatis mutandis apply.

(6) (a) The person who made a request in accordance with sub-article (1) shall also be entitled to demand that a full certificate of the act of birth showing the particulars resulting from the annotations be issued to them so however that there shall be indicated on such certificates the annotations that have been made upon it by virtue of adecree of a court or in terms of the procedure established under this Act without the details of the said annotations being specified.

(b) A person whose request to the Court of Revision of Notarial Acts, for a correction in the name and gender assigned to them in their act of birth, shall be entitled to demand that a full certificate of their act of birth showing the particulars resulting from the annotations be issued to them so however that there shall be indicated on such certificate that annotations have been made upon it by virtue of a decree of a court without the details of the said annotations being specified.

(c) Within seven days from receipt of a request made for the issue of a birth certificate drawn up in accordance with this article, the Director shall not give any information contained in the register indicating the original act of birth except insofar as provided in this article.

(7) The said information or copy of the original act of birth may be given:

(a) with the consent of the person to whom the certificate refers; or

(b) when there is no such consent, upon an order of the Court (Voluntary Jurisdiction Section) or of another Court taking cognizance of a cause where the necessity of the presentation of that certificate or information arises, where the Court is satisfied that the issuing of the said certificate or information is necessary to defend or safeguard a right or a legitimate interest of the person making the demand which, after taking into consideration all relevant circumstances, the court’s considerations should prevail over the right to privacy of the person to whom the certificate refers.

(8) A person who was granted international protection in terms of the Refugees Act, and in terms of any other subsidiary legislation issued under the Refugees Act, and who wants to change the recorded gender and first name, if the person so wishes to change the first name, shall make a declaration confirmed on oath before the Commissioner for Refugees declaring the person’s self-determined gender and first name. The Commissioner for Refugees shall record such amendment in their asylum application form and protection certificate within fifteen days.

5.(1) The drawing up of the declaratory public deed shall contain the following elements:

(a) a copy of the act of birth of the applicant;

(b) a clear, unequivocal and informed declaration by the applicant that one’s gender identity does not correspond to the assigned sex in the act of birth;

(c) a specification of the gender particulars;

(d) the first name with which the applicant wants to be registered; and

(e) all the prescribed elements required in accordance with the Notarial Profession and Notarial Archives Act.

(2) The Notary shall not request any psychiatric, psychological or medical documents for the drawing up of the declaratory public deed.

(3) Every Notary receiving such an act must deliver to the Director a note in accordance with article 50 of the Notarial Profession and Notarial Archives Act.

6.The date of entry of the note by the Director in accordance with sub-article (4) of article 4 shall be considered, for all purposes of the law, as the effective date from when the person is considered to belong to the gender indicated in the note.

7.(1)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.

(2) When an application under sub-article (1) 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.

(3) If the Court accedes to the request made in accordance with sub-article (1), the Court shall order the Director to change the recorded gender and first name of the minor in the act of birth of the minor.

(4) The persons exercising parental authority over the minor or the tutor of the minor whose gender has not been declared at birth, shall before the minor attains the age of eighteen, file an application in the registry of the Civil Court (Voluntary Jurisdiction Section) in order to declare the gender and the first name of the minor, if the minor wants to change the first name, and following the express consent of the minor, taking into consideration the evolving capacities and the best interests of the minor. The Civil Court (Voluntary Jurisdiction Section) shall order the Director to record the gender and first name of the minor in the act of birth of the minor.

8.(1)Accessibility to the full act of birth shall be limited solely and exclusively to the person who has attained the age of eighteen years and to whom that act of birth relates or by a court order.

(2) An amendment to the act of birth made in terms of this Act by a person who is not at the time a minor, once completed, can only be modified again by a court order.

9.(1)A final decision about a person’s gender identity, which has been determined by a competent foreign court or responsible authority acting in accordance with the law of that country, shall be recognized in Malta.

(2)A gender marker other than male or female, or the absence thereof, recognised by a competent foreign court or responsible authority acting in accordance with the law of that country is recognised in Malta.

10.(1)A person shall, not later than one month from the publication of the declaratory deed, indicate to the Director the acts of civil status, other than the act of birth, which need to be amended.

(2) A person, in respect of whom an amendment to the act of birth has been made in accordance with the provisions of this Act shall, within fifteen days from the date specified in article 6, request the authorised officers in terms of the Identity Card and other Identity Documents Act to amend the identity card and other identification documents of the person and to issue a new identity card and other identification documents indicating the gender and the first name of the person reflecting the amendment made in the act of birth of the person.

(3) A person may also, on the payment of such fee as may be prescribed, request any other competent authority, department, employer, educational or other institution to issue any official document or certificate relative to them indicating the change in gender and first name of the person.

11. (1) Whosoever shall knowingly expose any person who has availed of the provisions of this Act, or shall insult or revile a person, shall upon conviction be liable to a fine (multa) of not less than one thousand euro (€1,000) and not exceeding five thousand euro (€5,000).

(2) Saving the provisions of article 83B of the Criminal Code, when an offence is motivated by gender expression and sex characteristics, the punishment shall be that laid down in the said article.

(3) Whosoever knowingly violates any of the provisions of this Act, shall upon conviction be liable to a fine (multa) of not less thanfive hundred euro (€500) and not exceeding one thousand euro(€1,000).

12.A person who in the course of the discharge of official duties was involved with a matter relating to this Act, shall not disclose such matter in accordance with the Professional Secrecy Act and the Data Protection Act:

Provided that the copies of the public deed referred to in article 5 published in terms of the Notarial Profession and Notarial Archives Act shall not be deemed to have been issued in violation of this article.

13.(1)Every norm, regulation or procedure shall respect the right to gender identity. No norm or regulation or 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.

(2)The public service has the duty to ensure that unlawful sexual orientation, gender identity, gender expression and sex characteristics discrimination and harassment are eliminated, whilst its services must promote equality of opportunity to all, irrespective of sexual orientation, gender identity, gender expression and sex characteristics.

(3)The provisions of this Act shall apply to the private sector, all public sector and public service departments, agencies and all competent authorities that maintain personal records and, or collect gender information. Such forms, records and or information shall be assessed and modified to reflect the new standards established by this Act within a maximum of three years from the date of entry into force of this Act.

14.(1)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:

Provided that such sex assignment treatment and/or surgical intervention on the sex characteristics of the minor shall be conducted if the minor gives informed consent through the person exercising parental authority or the tutor of the minor.

(2) In exceptional circumstances treatment may be effected once agreement is reached between the interdisciplinary team and the persons exercising parental authority or tutor of the minor who is still unable to provide consent:

Provided that medical intervention which is driven by social factors without the consent of the minor, will be in violation of this Act.

(3) The interdisciplinary team shall be appointed by the Minister for a period of three years which period may be renewed for another period of three years.

(4) The interdisciplinary team shall be composed of those professionals whom the Minister considers as appropriate.

(5) When the decision for treatment is being expressed by a minor with the consent of the persons exercising parental authority or the tutor of the minor, the medical professionals 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 weight to the views of the minor having regard to the minor's age and maturity.

15.All persons seeking psychosocial counselling, support and medical interventions relating to sex or gender should be given expert sensitive and individually tailored support by psychologists and medical practitioners or peer counselling. Such support should extend from the date of diagnosis or self-referral for as long as necessary.

16.(1)The Minister, after consulting the Minister responsible for health, shall appoint a working group.

(2)The working group shall consist of a Chairperson and nine members.

(3)The Chairperson shall be a medical doctor with at least twelve years experience.

(4)The members shall be three experts in human rights issues, three psychosocial professionals and three medical experts.

(5)The Minister shall appoint the working group within three months of the entry into force of this Act.

(6)The members of the working group shall review the current medical treatment protocols in line with current medical best practices and human rights standards and shall, within one year from the date of their appointment, issue a report with recommendations for revision of the current medical treatment protocols.

17.The Minister may make regulations to give better effect to any of the provisions of this Act and generally to regulate gender identity in conformity with the provisions of this Act.

18.The Civil Code shall be amended as follows:

(a)immediately after sub-article (11) of article 4 thereof, there shall be added the following new sub-article:

"(12) When applying for the registration of a marriage contracted abroad between partners of the same sex, the partners to the marriage may elect to:

(a) adopt for both of them the surname of one of the partners to the marriage or the surnames of both in the order they choose for both; or

(b) retain their own surname:

Provided that if no choice is expressed in accordance with this sub-article the partners to the marriage shall retain their own surnames.";

(b)articles 257A to 257D thereof, both inclusive, shall be deleted;

(c)in paragraph (c) of article 278 thereof for the words "sex of the child;" there shall be substituted the words "the sex of the child: "and immediately thereafter there shall be added the following new proviso:

"Provided that the identification of the sex of the minor may not be included until the gender identity of the minor isdetermined.

19.Article 2 of the Equality for Men and Women Act shall be amended as follows:

(a) in sub-article (1) thereof, in the definition of the term "discrimination", the words "gender identity and includes the treatment of a person in a less favourable manner than another person is, has been or would be treated on these grounds and "discriminate" shall be construed accordingly;" shall be substituted by the words "gender identity, gender expression or sex characteristics and includes the treatment of a person in a less favourable manner than another person is, has been or would be treated on these grounds and "discriminate" shall be construed accordingly; ";

(b) in sub-article (3) thereof, the words "or gender identity is:" shall be substituted by the words "or gender identity, gender expression or sex characteristics is:";

(c) in paragraph (a) of sub-article (3) thereof, the words" or gender identity;" shall be substituted by the words "or gender identity, gender expression or sex characteristics;"; and

(d) in paragraph (c) of sub-article (3) thereof, the words" or gender identity;" shall be substituted by the words "or gender identity, gender expression or sex characteristics;";

(e) in paragraph (d) of sub-article (3) thereof, the words" gender identity, unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex." shall be substituted by the words" gender identity, gender expression or sex characteristics unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex.".

Passed by the House of Representatives at Sitting No. 256 of the1st April, 2015.