During the past years, both the Maltese Government
and the European Union have drafted and passed several legislations that
promote and advocate for LGBTIQ equality. These principles were not always at
the fore front of the political discourse and agenda in both Malta and Europe.

Principles of non-discrimination are mentioned both
in National laws, in Article 21 of the European Charter of Fundamental Rights (European Commission,
2000),
in Article 7 of the Universal Declaration on Human Rights (United Nations, 1949), and Goal 5 of the
United Nations Development (United Nations, 2015). These principles
will be later expanded upon in following sections of this assignment.

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Although, as stated earlier, principles of equality
are enshrined and advocated in several policies and legislations, a portion of
the population still exists that regards the LGBTIQ community as inferior
individuals and people who should be converted to “the right way”. There is
still a lot to be done.

Malta has experienced this trend during the past
years, although a lot more needs to be done to ensure complete and sustainable
equality.

1.     DEFINING
GENDER

According
to the World Health Organisation (n.d.), gender refers to all characteristics
that are socially constructed and define masculine and feminine such as norms,
relationships and roles of these groups and between individuals. Gender roles
vary from culture to culture and may vary across time (Parke & Gauvain, 2008). 

 

Most
people can identify and relate their gender as being male or female and are
taught social norms and behaviours pertaining to that particular gender role.
These norms include the way they are expected to interact with other people of
the same or different sex within their communities, households and work places.

 

There
might be cases that individuals do not feel that they belong to any of the
binary gender categories (male or female) and feel that they do not belong to
those particular established gender norms and often face discrimination, stigma
and social exclusion. All the aforementioned may adversely affect the social wellbeing,
mental wellbeing, physical wellbeing and general health conditions of the
individual (World Health Organisation, n.d). It is important for one to be
particularly sensitive to these different identities that do not necessarily
correspond to the binary sex categories.

 

As
stated earlier in this assignment, not all individuals fit in the binary gender
categories. As a result of this, activists in the 1990s adopted the term LGBT
to define all those individuals who did not identify with the binary gender
categories. LGBT stands for Lesbian, Gay, Bisexual
and Transsexual. During the years,
this term was expanded and varied after the recognition of other genders. Due
to the many variants and several expansions the term has experienced during the
years, this assignment shall be using the term LGBTIQ including Intersex and Queer and Questioning. In
reality, other terms include individuals who are Asexual, Allies and
others.

 

2.    
HISTORY
AND ASPECTS OF GENDER ISSUES AND POLICY IN MALTA

As
stated earlier in this assignment, Malta was not impervious to changes in
policy, legislation and mentality experienced in other parts of the world. From
a country that was considered as one of the most traditionalist counties in
Europe on LGBTIQ issues (Abela, 1994), Malta came first in
the ILGA-Europe Rainbow Index (ILGA Europe, 2017).

A.   
Protection
against Discrimination

Legislation
and policies related to LGBTIQ rights in Malta are not recent in Malta but have
a long history. The Independence Constitution of 1964 included Articles which
entrench fundamental human rights, including non-discrimination on the basis of
sexual orientation. Article 32 of the Constitution of Malta was amended in 1974
to state:

“Whereas every person in Malta is
entitled to the fundamental rights and freedoms of the individual, that is to
say, the right, whatever his race, place of origin, political opinions, colour,
creed, sex, sexual orientation or gender identity, but subject to
respect for the rights and freedoms of others and for the public interest, to
each and all of the following, namely –

(a) life, liberty, security of the
person, the enjoyment of property and the protection of the law;

(b) freedom of conscience, of
expression and of peaceful assembly and association; and

(c) respect for his private and
family life…”

 (Government of Malta, 1964)

Article
45 in the Constitution of Malta makes provisions that all Laws passed by the
Legislative branch of the State shall not pass any law that is discriminatory
to any group of citizens in the Country. The Constitution defines
discriminatory in Article 45, Sub-article 3 as:

 
“This  article,  the 
expression 
“discriminatory”  means
affording different treatment to different persons attributable wholly or
mainly to their respective descriptions by race, place of origin, political
opinions, colour, creed, sex, sexual orientation or gender identity
whereby persons of one such description are subjected to disabilities or
restrictions to which persons of another such description are not made subject
or are accorded privileges or advantages which are not accorded to persons of
another such description.”

(Government of Malta, 1964)

It
is also important to note that there is no discrimination between the age of
sexual consent between heterosexuals and the LGBTIQ community in Malta. This is
not always the case as countries like Greece, Canada and Paraguay amongst
others have an unequal age of sexual consent. (ILGA, 2017)

Later
government continued to build on what the Constitution of Malta deemed as discriminatory
towards the LGBTIQ community. The Employment and Industrial Relations Act (CAP
452) also states the importance of not discriminating on the basis of sexual
orientation or gender identity. Article 26 was amended in 2009 to provide for
discrimination on the workplace (Government of Malta, 2002). It states:

“It shall not be lawful for any
person

(a) when advertising or offering
employment or when advertising opportunities for employment or when selecting
applicants for employment, to subject any applicants for employment or any
class of applicants for employment to discriminatory treatment;…”

(Government of Malta, 2002)

The
Criminal Code of Malta (Government of Malta, 1854), does not mention
any legal penalties with respect to homosexuality. Homosexuality in Malta is
legal for both males and females. There is no mention of prison terms for
sodomy (decriminalised in 1971), sexual act between homosexual individuals,
acts against nature, buggery or homosexual indecency (ILGA, 2017).

B.   
Recognition
of Civil Unions and Same Sex Marriage

The
recognition of civil unions and same-sex marriage did not occur in a vacuum in
Malta. Advocacy organisations like the Malta Gay Right Movement (MGRM) have
been advocating for LGBTIQ rights since 2001 (MGRM, n.d.).
Change in public opinion and cooperation between Government authorities and all
other stakeholders involved ensured that legislation would be drafted and
amended in a way to create a more inclusive society.

A change in attitude can be clearly observed
between the years 2006 and 2015. According to a Eurobarometer study, only 18%
of the respondents were in favour of same-sex marriage (European Commision, 2006). This percentage
increased considerably in 2012, where, according to a study carried out by a
Maltese journal, 41% of the respondents were in favour of same-sex marriage (Maltatoday,
2012).
This percentage increased further after the introduction of same-sex marriage
to 65% (European Commission, 2015).

Former
Prime Minister Lawrence Gonzi announced in 2010 that the Government was
drafting a bill to regulate cohabitation for homosexual and heterosexual
couples in Malta. A draft bill was presented in Parliament on the 28th
of August 2012 and a consultation process was set till 30th of
September. The bill was later introduced in Parliament, although it had to be
put ‘on hold’ due to the dissolution of Parliament in January 2013. (Times of Malta, 2012)

The
first major change in approach was taken on 22nd April 2013, when
Hon. Helena Dalli, Minister for Social Dialogue, Consumer Affairs and Civil
Liberties launched the LGBT consultative council (Maltatoday, 2013). The aim of this council was to draft
legislation for the introduction of civil unions in Malta and, at a later
stage, draft legislation that recognised transgender people in Malta. Another
aim of this consultative body was to promote education to children on LGBT
rights, on addressing discrimination and celebrating diversity.

Draft
legislation known as the Civil Unions Bill gave homosexual couples rights which
were almost identical to marriage, including the right to legally adopt children
as a joint couple. It is important to note that this bill was never intended to
directly introduce same-sex marriage in Malta but introduced similar rights and
obligations. This bill can be considered as a precursor to later changes in
legislation. This bill was debated in Parliament in October 2013 (Times of Malta, 2013). The bill was later
approved and introduced after a third reading in April 2014 (Malta Independent, 2014)

After
the snap elections of June 2017, the Government presented Legal Notice 212 of
2017 that amended the Maltese Marriage Act (CAP 255). These amendments would
provide equal rights to homosexual and heterosexual couples. This bill was also
proposing in using gender neutral terms instead of gender-specific terminology.
The bill was enacted into law in September 2017 (Times of Malta, 2017).

C.    The LGBTIQ Community and the Armed
Forces of Malta

 

People who form part of the LGBTIQ
community can serve in the Armed Forces of Malta (AFM) irrespective of their
sexual orientation. According to the AFM, there is a number of openly gay
individuals who serve as soldiers in the AFM (Malta Independent, 2010). Officials in the
AFM deem that soldiers should be judged on their merits and qualifications and
not on their sexual orientation.

 

D.   
The
LGBTIQ Community and Issues of Adoption and Surrogacy

 

At present, Maltese law provides
adoption rights to all married couples and single individuals, including those
identifying as LGTBIQ (Times of Malta, 2014). In April 2014, the
Government started recognising homosexual couples in civil unions with adoption
rights. Irrespective of the sexual orientation or gender identity of the
prospective parent or parents, a court ruling is needed for an effective
adoption to take place (Foundation for Social Work Services, n.d.).

 

At the moment, surrogacy is also
illegal for all and the Government had no intention of introducing surrogacy in
Malta. With respect to In-vitro fertilisation (IVF) is inaccessible for single
women and lesbians under the Embryo Protection Act (Government of Malta, 2012).
In 2017, the Government amended the Embryo Protection Act and allowed access to
IVF services to female homosexual couples.

 

E.    Hate Speech and Hate Crime

The
Criminal Code (CAP 9) of the Laws of Malta provides for penalties against
discrimination, on wilful offences against the person, on crimes against public
safety and general provisions applicable to Offences which are racially
aggravated or motivated by Xenophobia.

Article
82A mentions that whoever uses threatening, abusive or insulting language on
the grounds of gender, gender identity, sexual orientation amongst others shall
be liable to imprisonment for a term from six to eighteen months (Government of Malta, 1854).

Article
83B also mentions that whoever commits any offence that is motivated or
aggravated by hatred against a person or a group of individuals on the basis of
their gender, gender identity, sexual orientation amongst others shall have
his/ her penalty increased by two degrees.

It is
also important to note that the Laws of Malta do not consider homophobia and
transphobia are not explicitly defined as an aggravating factor (European Union Agency for Fundamental Rights , n.d.).

Unfortunately,
one cannot report the incidence of hate speech and hate crime towards the
LGBTIQ community in Malta as no data was ever submitted to the OSCE Office for
Democratic Institutions and Human Rights – ODIHR (n.d.).

F.    
Intersex
Status Recognition in Malta

Intersex
recognition is a relatively new concept accepted in Maltese law. Joanne Cassar,
a Maltese Intersex woman was not allowed to marry because the Maltese State and
its authority did not recognise her as a woman, and as a result, could not
marry a man as this would have effectively been a same sex marriage. This
resulted in a Constitutional Court and later a case before the European Court
for Human Rights for her to marry (Television Malta, 2014).

In
April 2015, The Maltese Parliament passed the Gender Identity, Gender
Expression and Sex Characteristics Act – GIGESC (Parlament ta’ Malta, n.d.).

As
a result of this new law, Malta became the first country in the world to
criminalise invasive surgeries and sterilisation procedures on intersex
couples. Applicants could also apply and change their gender identity on
official state documents by procuring a sworn statement from a notary. All this
would be done without undergoing any medical tests or gender reassignment
procedures (Maltatoday, 2016).

The
law was later amended in December 2016 to allow minors with more than sixteen
years of age to have the ability to change their gender on official documents
without needing parental approval or a court application.

Another
element mentioned in GIGESC was that it also prohibited discrimination on the
basis of sex characteristics. This was done to protect Intersex couples from
discrimination.

G.   Blood Donation and the LGBTIQ
Community

 

In Malta, men who have sex with men
(MSMs) are not allowed to donate blood. Although this might look trivial and
blatantly discriminatory against some gay and bisexual individuals in the
LGBTIQ community, medical reasons and justifications exist.

 

Although a ban on gay and bisexual
man to donate blood reduces the risk of false negative results and the spread
of HIV/ AIDS, Hepatitis B and Hepatitis C, LGBTIQ groups say that this rule is
discriminatory. Legally, this ban can be imposed on both MSMs and also on
female sex partners of MSMs. Some countries ban or defer blood donation for gay
and bisexual men indefinitely, although other countries in the world have
deferral periods between three and twelve months long. On the other hand,
countries like China and Russia have no deferral periods at all.

 

Hon. Chris Fearne, Deputy Prime
Minister and Minister for Health set up a technical committee in 2015. Reports
say that one of the recommendations that this committee put forward was that of
removing the current indefinite deferral period in Malta and introduce a
definite deferral period of 12 months for MSMs (Times of Malta, 2016).

 

H.   Conversion Therapy

 

Hon. Helena Dalli, Minister for
Social Dialogue, Consumer Affairs and Civil Liberties, announced that the
Government had the intention of passing legislation to ban gender identity or
sexual orientation conversion therapy for minors in Malta in 2015 (Maltatoday, 2015).

The
bill was presented in Parliament later on that year and a consultation process took
place till the end of January of 2016 (Parlament ta’ Malta, 2016). Several
stakeholders, including National and International LGBTIQ advocacy groups and
the Maltese Association of Psychiatry (MAP), the Maltese Association for the
Counselling Profession (MACP), the Malta Chamber of Psychologists (MCP) and the
Malta Association of Family Therapy and Systematic Practice (MAFT – SP), had
shown their support to the introduction of this bill in Malta (New York Times, 2016).

The bill was finally introduced as
law after a unanimous vote in Parliament in November 2016. This made Malta the
first country in the EU to make gay conversion therapy illegal.

 

3.     
CONCEPTS
BEHIND LGBTIQ ISSUES

My
analysis of concepts will be based on the policy process framework in the
context of LGBTIQ policy in Malta. According to Althaus, Bridgman and Davis
(2012), the policy process is roughly divided into 8 different stages. It is
important to note that other authors define this process using a different
number of stages.

 

A.   
Issue
Identification

 

Social issues may be
broadly defined as those problems that are not meeting the needs and
expectations of constituents and citizens. In this case, the need arose from
the LGBTIQ community itself and other LGBTIQ advocacy groups and allies which
managed to push LGBTIQ issues on the national stage. Unfortunately, at the time
most LGBTIQ policy was either archaic or inexistent. As I have explained
earlier, it was the cooperation of all these stakeholders that brought about a
positive change in society.

 

B.    
Policy
Analysis

 

Policy Analysis in the
case of Malta was not a very difficult process for Maltese policy makers. This
is due to the fact that most Maltese LGBTIQ policy before 2013 was either
inexistent or archaic for its time. Notwithstanding, policy analysis was
important in analysing what policies needed to change and what other policies
needed to be adapted. It is important to note that Malta’s success in this
field was due to its good adaptation of European and International policies
that would have granted LGBTIQ individuals identical rights as other
heterosexual individuals.

 

C.   
Policy
Instrument Development

 

All draft policies and
bills drafted by the consultative body were carried out after a
well-thought-out National and international policy analysis. It is important to
note that the terminology used in these policies was gender-neutral and
non-discriminatory. The language used was also positive without making the
LGBTIQ community seem as a problem for society, a taboo topic or something
which should be tolerated and not accepted and celebrated. This choice of language
would lead to a change in approach by society towards LGBTIQ issues.

 

D.   
Consultation

All consultation processes discussed during this
assignment were based on principles of inclusion and respect. It is important
to carry out a comprehensive, open and free consultation process where every
individual feels that his opinion is valued and can be used to ameliorate the
policy in question. This was achieved both by discussions within the
consultative body, meetings with other stakeholder and an online consultation
the Ministry’s website. This process, if done correctly, would ensure a
balanced outcome between the requests of the minority group (LGBTIQ community
in this case) and other groups in society.

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