In order to honour Pride month, I was commissioned to write an extract concerning the LGBTQIA+ Community. This article shall be a brief informative overview of the key changes that took place over the years with regards to laws that affect the LGBTQIA+ community as well as changes that are in the pipeline.
Upon Independence in 1964, Malta inherited the penal code, enacted under British rule, in which homosexual activity was deemed to be a criminal offence.[1] The first step, just like many other reforms such as the recent Cannabis Bill, was decriminalising sodomy in 1973. However, progress came to a standstill, the biggest factor owing to the well-known moral grip of the Roman Catholic Church over the Maltese community and legislation.
Once Malta expressed its interest to join the European Union in 1990, it had to bring up to speed its laws in order to be accepted into the union. In 1994 the European Parliament adopted a resolution on equal rights for the queer community, solidified though the Treaty of Amsterdam which included ‘sexual orientation’ on the list of grounds for non-discrimination.[2] It is my belief that our accession into the EU played a pivotal role in the development of the creation of advantageous laws for the LGBTQIA+ community. In 10 years, Malta went from joining the EU (2004) to passing the Civil Unions Act (2014) which enables queer couples to be legally seen as equals with their heterosexual counterparts.
In 2011 the European Commission took legal action against Malta as it was in breach of the free movement directive.[3] This directive (2004/38/EC) adopted in 2004 which has binding force over all EU Member States, catered for the right of free movement and residence of nationals across Member States. It provided, inter alia, that there could be no discrimination against same sex couples and that a ‘family member’ should also include the registered partner if the legislation of the Member State treats registered partnership as equivalent to marriage.[4] A study conducted by Prof. Ian Refalo and Dr Therese Commodini Cachia between February 2008 and April 2010[5] revealed that there is an ‘unwritten policy’ that makes it seem that a non-Maltese partner would not obtain movement and residence in Malta on the basis of their relationship, but only on the basis of his/her EU citizenship where this exists, thus constituting an infringement of the directive. This is because Maltese legislation did not cater as yet for same sex marriages, as the Marriage Act[6] had never expressly provided for the definition of what marriage is. However, (before the major historic amendments that took place through Act XXIII of 2017) it was implied through the references to ‘husband’ and ‘wife’ accompanied by statements made by State figureheads that the intention was clearly to confer the civil right of marriage solely to a heterosexual couple:[7]
There is no intention to give recognition to this type of marriage [same-sex] in Malta and this since it is incompatible with the Marriage Act in Malta that allows marriage only between persons of the opposite sex.[8]
In-neċessità li l-unjoni matrimonjali tkun bejn mara u raġel, għandhom l-għeruq tagħhom fl-għarfien realistiku tan-natura umana u d-differenzi bejn is-sessi mara.[9]
The Divorce Referendum in 2011, which legalized divorce in Malta, proved to be one of the driving forces to legalizing gay marriage through the Civil Unions Act. It is indeed quite ironic that whilst heterosexual couples were fighting for the right to divorce, gay couples were fighting for the right to get married. Nonetheless, this debate seemed to prove that there had been a societal shift in moral values, undermining the assumption that the Church’s dominance is unfailing. In fact, in 2006 a Eurobarometer survey revealed that only 18% of Maltese support gay marriage. In 2012 that number increased to 41%.[10] Furthermore, the legalisation of divorce kickstarted the talks for a Cohabitation Bill. Although it was a good step in the right direction, many LGBTQ+ pressure groups, including the Malta Gay Rights Movement (MGRM), felt that this bill would continue to marginalize queer couples as it made it seem that they are undeserving of marriage, so they would have to settle for an inferior alternative.[11] The superficial difference between cohabitation and marriage lies in the fact that the couple are not legally recognized as being bound to one another, thus one party could simply end the relationship without reason or proceedings.[12] The Cohabitation Act has since been repealed by Act XXVII of 2020 and replaced with another eponymous Act.[13]
This brings us to the most pivotal moment for all members of the LGBTQIA+ community. The enactment of the Civil Union Act[14] through Act IX of 2014. Legally modelled on the Danish Registered Partnership Act of 1989,[15] it is straightforward and minimalistic, only 2 pages long, aimed at providing a comprehensive law as opposed to amending every single provision related to marriage. Moreover, later, through Act XXIII of 2017, major amendments were made to the Criminal Code, Code of Organisation and Civil Procedure, Civil Code, Marriage Act, and other subsidiary laws, to ensure that laws in connection with the introduction of marriage equality and other matters ancillary to it are accessible to everyone and to squeeze out any loopholes.
Another act worth noting is the Gender Identity, Gender Expression and Sex Characteristics Act.[16] It gained force in 2015. Throughout its provisions, it creates a clear differentiation between ‘gender expression’, ‘gender identity’, ‘lived gender’, and ‘sex characteristics’. Furthermore, it allows for change of gender identity – including changing of essential documents like the birth certificate and identity card; however, the original copy is kept.[17] This includes any decision made by a foreign competent court.[18] This change of gender identity must be adhered to any gender-segregated facility in Malta including correctional facilities and hospitals.[19] It must be kept in mind that doctors are forbidden by law to commence any gender treatment until the person has attained 18 years of age or if their parents or guardians consent[20] after filing an application in the registry of the Civil Court (Voluntary Jurisdiction Section).[21] This was a big step forward in ensuring that transgender citizens are recognized under our legislation.
A very recent update concerning blood donations of gay men made headlines this month. Previously, gay men were not allowed to donate blood due to the stigma of HIV.[22] Although the ban was lifted in 2019, the National Blood Transfusion Service only received the adequate equipment just now.[23]
With regards to future projects, there was a bill before the House known as the Equality Bill[24] or Bill 96 of 2019 piloted by Hon. Helena Dalli. It aimed to transpose various EU directives directly into national legislation and to repeal Chapter 456 of the Laws of Malta, the Equality for Men and Women Act. I believe this was being done in order to exclusively include any non-binary citizens. Some of the determining features of this bill were that it included a very detailed description of what discrimination should be understood as. In my humble opinion, it was almost too detailed, as by including, one automatically excludes, and it is also worth noting that these terms are already protected under our Constitution.[25] Additionally, it promised to ensure that the appointments to public bodies which are made after the enactment of the bill are at least 40% women and 40% men and aimed to broaden the ‘incitement to hatred’ provision of the Criminal Code (Art. 82A). This bill has not yet been re-proposed following the new legislature after the 2022 general election, and is therefore considered abandoned for the time being.
The increased tolerance of LGBTQIA+ laws was mostly top-to-bottom, meaning that first the laws changed, then after many years our society accepts them. Malta, on paper, ranks at the top for pro-LGBTQIA+ community acceptance and laws, yet this legal progress is not always reflected in our society. In general, at the moment throughout the world, there is a horrible re-birthing of far-right conservative tendencies. I believe that the cornerstone to change any society is through education of younger generations, learning from a young age about the community and helping them come to the realisation that love is love no matter what a person outwardly projects.
Written by Laura Chetcuti Dimech
GħSL Moot Court Officer
[1] Mark Harwood, ‘Adopting Same-Sex Unions in Catholic Malta: Pointing the Finger at “Europe”’ (2015) 20(1) South European Society & Politics 113.
[2] Treaty Of Amsterdam Amending The Treaty On European Union, The Treaties Establishing The European Communities And Certain Related Acts [1997] OJ C 340/1, Art. 6A.
[3] European Commission, ‘Q&A: Report on the Charter of Fundamental Rights and on Progress in Gender Equality’ (8 May 2013) <https://ec.europa.eu/commission/presscorner/detail/mt/MEMO_13_411> accessed on 10 September 2022.
[4] Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [2004] OJ L 158/77 <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32004L0038> accessed on 10 September 2022.
[5] Therese Comodini Cachia and Ian Refalo, ‘Legal study on Homophobia and Discrimination on the Grounds of Sexual Orientation in Malta’ <https://www.google.com.mt/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwiwzIeszpT6AhV0R_EDHb0YBRAQFnoECAYQAQ&url=https%3A%2F%2Ffra.europa.eu%2Fsites%2Fdefault%2Ffiles%2Ffra_uploads%2F1362-lgbt-2010_thematic-study_mt.pdf&authuser=1&usg=AOvVaw0uWvqgyn7N5YIO9hyUOzMO>.
[6] Marriage Act, Chapter 255 of the Laws of Malta.
[7] Emma Camilleri, ‘The “Civil Unions Act, 2014” and its effect on Civil Law aspects’ (LL.D. thesis, University of Malta 2014).
[8] HR Deb 2001 (IX 487) Answer to Parliamentary Question given by Hon. Dr T. Borg, Minister for Justice and the Interior.
[9] George Abela Speech, ‘Il- Familja: Ilbieraħ, Illum, Għada’.
[10] Harwood (n 1).
[11] ibid.
[12] ibid.
[13] Cohabitation Act, Chapter 614 of the Laws of Malta.
[14] Civil Union Act, Chapter 530 of the Laws of Malta.
[15] Harwood (n 1).
[16] Gender Identity, Gender Expression and Sex Characteristics Act, Chapter 540 of the Laws of Malta.
[17] Civil Code, Chapter 16 of the Laws of Malta, Art.249.
[18] Gender Identity, Gender Expression and Sex Characteristics Act, Chapter 540 of the Laws of Malta, Art 9.
[19] ibid Art 9A.
[20] ibid Art 14.
[21] ibid Art 7.
[22] Clare Farrugia, ‘Gay men can now donate blood, three years after ban was ‘lifted’’ (2022) <https://timesofmalta.com/articles/view/gay-men-now-donate-blood-two-years-ban-lifted.978182> accessed 15 September 2022.
[23] Jessica Arena, ‘Gay men will be allowed to donate blood as of next week’ (2019) <https://timesofmalta.com/articles/view/gay-men-will-be-allowed-to-donate-blood-as-of-next-week.735101> accessed 15September 2022.
[24] Equality Bill HR (XII 2019) [96].
[25] Constitution of Malta, Art 43(3).
