| For a summary of Malta’s review at the first UPR cycle please click here. |
17th UPR session
Date of review: 30 October 2013
Date of report adoption: 21 March 2014
Working Group report: A/HRC/25/17
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SUMMARY SOGIESC issues during Malta’s 2nd UPR review |
I. Key issues/recommendations identified by NGOs
- Implement the CEDAW recommendations to put in place a comprehensive strategy to overcome traditional stereotypes, and to address violence against women in the family and in society;
- Include diversity awareness and education in the national school curriculum, along with specific activities promoting respect for LGBTI students;
- Take steps to legally recognise a person’s chosen gender identity in all aspects, without infringement on other rights including the right to marry, the right to bodily integrity and the right to found a family.
II. Excerpts from input reports
National report
III. Human rights protections
D. The National Commission for the Promotion of Equality (NCPE)
14. The ‘Equality for Men and Women Act’ (2003) provides for the setting up of this Commission which works to ensure freedom from discrimination in Maltese society. The mentioned Act empowers the Commission to independently investigate complaints within its remit and provide independent assistance to persons facing discrimination. Its role also extends to monitoring the implementation of national policies with respect to the promotion of equality for men and women.
15. At its inception, the Commission’s remit was limited to the elimination of discrimination on the grounds of gender and family responsibilities in employment. Discrimination on the grounds of race/ethnic origin and gender in the provision of goods and services and their supply were added in 2007 and 2008 respectively. Through amendments to the said Act which took effect in the year 2012, the Commission’s remit was further extended so as to also cover the promotion of equality on the basis of sexual orientation, age, religion or belief, racial or ethnic origin, and gender identity in employment, financial institutions and education.
17. The NCPE also works to safeguard and promote equal opportunities on the grounds of age, race/ethnic origin, gender, religion, sexual orientation and gender identity, by disseminating information on rights and responsibilities related to equality on these grounds through training and other awareness raising campaigns, and by assisting persons who feel discriminated against on these grounds by investigating their complaints. Furthermore, the NCPE also carries out training as part of its core work to various groups or entities who request training on equality and non-discrimination issues, including facets related to sexual orientation.
IV. Achievements, best practises, challenges and constraints
D. Protecting the rights of individuals and vulnerable groups and promoting equality
Equality
91. In Malta the National Commission for the Promotion of Equality (NCPE) promotes equality through various initiatives and through the investigation of complaints brought before it by the general public. The NCPE is an autonomous body which, inter alia, monitors and reviews local legislation and suggests amendments as necessary.
92. In 2009, Malta accepted the recommendation 12 on strengthening the National Commission for the Promotion of Equality. In 2012, the remit of the National Commission for the Promotion of Equality (NCPE) was extended to cover equal treatment on the grounds of gender and family responsibilities, sexual orientation, age, religion or belief, racial or ethnic origin, and gender identity in employment; banks and financial institutions, education and vocational guidance; as well as on the grounds of race or ethnic origin and gender in the access to and supply of goods and services.
93. NCPE is empowered to work to safeguard equality on these grounds by raising awareness and investigating complaints of persons who feel discriminated against on these grounds. It assists persons who feel discriminated against on the grounds of age, race/ethnic origin, gender, religion, sexual orientation and gender identity in employment, education and vocational guidance and financial institutions, by investigating their complaints. To this end, NCPE provides independent assistance and carries out independent investigations in relation to alleged discriminatory incidents that are lodged with it. Following an investigation, the Commissioner may (as per Article 18(1) of Chapter 456) dismiss the complaint, or in cases where the complaint is proven, can: (i) where the action complained upon constitutes an offence, make a report to the Commissioner of Police for action on his part; or (ii) where the action complained of does not constitute an offence, call upon the person against whom the complaint is directed to redress the situation, and mediate between the complainant and such person to settle the matter.
Discrimination
97. The National Commission for the Promotion of Equality works to safeguard equal treatment on the grounds of age, race/ethnic origin, gender, religion, sexual orientation and gender identity in employment, education and in the access and supply of goods and services. To this end, it carries out awareness raising campaigns that also address racial discrimination so to continue fostering a climate of greater tolerance and acceptance towards immigrants. In addition, it assists persons who, in this regard, feel discriminated against by investigating their complaints and by carrying out research on specific facets related to racial discrimination at a national level. The Commission also provides independent assistance and carries out independent investigations in relation to alleged discriminatory incidents that are lodged with it. It should be noted that anti-discrimination and human rights legislation in Malta applies. As a result, adequate protection is provided to all persons in Malta, including migrants.
LGBTI
104. Following a change in the Government administration in March 2013, the newly- elected Government of Malta set up a consultative council on LGBT issues, to prepare draft bills and policy papers aiming at furthering LGBT rights. It is also the Government’s view that education from an early age is key to eradicate discrimination on all grounds including sexuality and gender identity. In this respect, there are plans to address discrimination and negative attitudes towards minorities from a young age.
105. On 15 April 2013, an amendment to the Civil Code was presented to Parliament. This amendment has now passed all stages of Parliament. It is the intention of the Government to introduce civil unions for same sex couples by the end of 2013.
Sexual and Reproductive Health Policy
115. In 2009 Malta accepted Recommendation 38 to formulate a national policy on sexual education. The Maltese Government is of the view that the focus of any initiatives undertaken with regards to sexual health should focus on ‘knowledge uptake’ and ‘education’ with a view to changing attitudes and empowerment initiatives intended to enable persons to make the right choices about their lifestyle and, in particular, their sexual lifestyle. This is also the approach adopted in the National Sexual Health Policy (launched in November 2010) and the Sexual Health Strategy (launched in November 2011).
Sexual and reproductive health care
120. Aspects of sexual education are covered in schools as part of the ‘Personal and Social Development’ (PSD) curriculum subject. In PSD, various topics related to sexuality and relationships education are tackled, addressing the various age groups throughout the scholastic year. The main aims of Sexuality and Relationship education in PSD are to help students develop a positive attitude of sexuality, and be able to communicate about sexuality, emotions and relationships; develop the necessary skills to make informed and responsible decisions and choices about their sexual behaviour and health; develop the necessary skills to enter into relationships which are based on mutual respect and understanding for one another’s needs and boundaries; encourage critical thinking and eflection about gender identities and gender-role stereotyping; develop acceptance and respect for people with different sexual choices and orientations; acquire the necessary information that they need to take care of their sexual health; acquire the necessary information about different types of sexually transmitted infections and contraception and acquire the knowledge and skills to be able to identify and access sexual health resources in the community. The topics are also discussed within a pedagogical model which allows attitudes and skills to be acquired through experiential learning (learning from participants’ own experiences, be they real or simulated through an activity) and individual and group processing.
Compilation of UN information
III. Implementation of international human rights obligations, taking into account applicable international humanitarian law
A. Equality and non-discrimination
11. CEDAW remained concerned about the persistence of patriarchal attitudes and stereotypes regarding the roles and responsibilities of women and men in the family and society. It was concerned that women continued to be stereotyped as mothers and caregivers, while men were stereotyped as breadwinners, which undermined women’s social status, as reflected in women’s disadvantaged position in a number of areas. It called upon Malta to put in place a comprehensive policy to overcome traditional stereotypes. Such a policy should include legal, administrative and awareness-raising measures and involve public officials, church authorities, civil society and media. CEDAW also recommended that Malta consider applying temporary special measures in areas in which women are underrepresented or disadvantaged and allocate additional resources to accelerate the advancement of women.
B. Right to life, liberty and security of the person
21. CEDAW remained concerned at the high prevalence of violence against women and persistence of sociocultural attitudes condoning domestic violence and deterring women from reporting cases to the police. It urged Malta to continue to put emphasis on comprehensive measures to address violence against women in the family and in society. CEDAW recommended that Malta ensure that female victims of violence have immediate protection, including the possibility of expelling the perpetrator from the family home, effective recourse to a shelter and access to free legal aid and psychosocial counselling.
22. CEDAW reiterated its concern that the crime of rape must be associated with violence and that rape and violent assault were considered in the Criminal Code under the title “Of crimes against the Peace and Honour of Families and against Morals”. It urged Malta to define rape and violent assault as crimes against women’s physical and mental integrity and as a form of sex and gender based-discrimination; and review the definition of rape so as to place the lack of consent at its centre.
Summary of stakeholders’ information
C. Implementation of international human rights obligations, taking into account applicable international humanitarian law
1. Equality and non-discrimination
8. JS1 referred to reports indicating homophobic bullying in schools. It recommended that Malta broaden and enhance the national anti-bullying policy to ensure inclusion of a specific reference to homophobia and transphobia and alternatively, introduce specific anti- homophobic and anti-transphobic bullying policy. JS1 also recommended that diversity awareness and education in schools is specifically included in the national curriculum, to be coupled with specific activities promoting respect for lesbian, gay, bisexual, transgender and intersex students.
4. Right to privacy, marriage and family life
26. JS1 stated that Malta offered no form of legal recognition of same-sex relationships. This legal vacuum has been also problematic in the context of non-Maltese couples within a form of legally recognised relationship and travelling to Malta, where their relationship and acquired rights and obligations were effectively nullified.
27. Likewise, ICJ stated that under Maltese law, transgender individuals were not permitted to marry their opposite-sex partners. It called on the Human Rights Council to recommend that Malta take steps to legally recognize a person’s chosen gender identity in all aspects, including the right to marry, and to ensure that individuals are not discriminated against on the basis of gender identity. JS1 recommended that Malta revise current legislation to ensure that transgender persons are treated by the law as members of their affirmed gender without the requirement to undergo sex reassignment surgery, which is equal to forced and permanent sterilisation.
28. JS1 stated that, with regard to children having same-sex parents, the law only recognised the biological parent as the legal parent of the child, with consequences on the exercise of parental authority as well as on possible eventual termination of the parental relationship. One of the persons in a same-sex couple moving to Malta with children would be effectively stripped of all parental rights and obligations. JS1 stated that it was not possible for same-sex couples to adopt.
III. References to SOGI during the Working Group review
A. Presentation by the State under review
8. On the occasion of the International Day against Homophobia and Transphobia, the Government signed a declaration calling for a comprehensive policy approach – at European Union level and across the European Union – on LGBTI issues aiming at improving human rights and mainstreaming equality for LGBTI people.
9. The delegation stated that the new government was fully committed to the protection of the rights of LGBTI persons. A few weeks after being elected, the Government reached an out-of-court (ECHR) settlement with a transgender person who was previously prevented from marrying by Maltese law. Subsequently the civil code was amended to allow persons who undergo a legally recognised gender change to be recognised in the new gender acquired in the remaining areas hitherto not acknowledged. With regard to same-sex relationships, the Government presented a bill in Parliament aimed at the legal recognition of same-sex couples and once enacted, same-sex couples would be able to register their union and be granted equal marriage rights. The law would also provide for the recognition of civil marriages contracted by same-sex partners outside of Malta.
10. The drafting of the Civil Union Act was one of the tasks given to the newly founded Consultative Council on LGBTI rights, which was assigned to advise government and that was made up of NGOs representing the LGBTI community.
22. The National Commission for the Promotion of Equality (NCPE) has worked s to safeguard and promote equal treatment based on the grounds of sex/gender and family responsibilities, sexual orientation, age, racial or ethnic origin, religion or belief and gender identity in employment, banks and financial institutions as well as education and vocational training. It also worked to ensure equality based on racial or ethnic origin and gender in the provision of goods and services and their supply. It carried out training on equality and non-discrimination issues, investigated complaints and provided independent assistance to persons facing discrimination. Its role also extended to monitoring the implementation of national policies with respect to the promotion of equality for men and women through gender-mainstreaming. The delegation stated that the Government has been working to extend the remit of NCPE to a Human Rights Institution in accordance with the Paris principles.
B. Interactive dialogue and responses by the State under review
32. The United Kingdom of Great Britain and Northern Ireland welcomed progress in LBGT issues and urged Malta to reform its judicial system to minimize time spent in pre-trial detention, and ensure equal application of the law. It encouraged the integration of beneficiaries of international protection, guaranteeing the wellbeing of vulnerable asylum seekers and migrants and ensuring the safety of migrants crossing the Mediterranean. It made recommendations.
33. The United States of America commended Malta’s human rights record and commitment to the promotion of such rights, both domestically and internationally. It praised recent efforts to promote LGBT rights. It was concerned by the lack of a formal mechanism referring trafficking victims to appropriate services, the detention of young and vulnerable migrants and difficult detention conditions for some migrants. It made recommendations.
36. Albania commended Malta’s legal coverage of all human rights. It noted Malta’s commitment to the rights of vulnerable groups through its National Commissions and steps enhancing LGBT rights. It praised the amendment to the Civil Code introducing divorce as a legal remedy, and the amendment to the Equality for Men and Women Act and the “Unlocking the Female Potential” project. Albania made recommendations.
39. Armenia welcomed the legislative and administrative changes made since the previous UPR to improve human rights, particularly the ratification of CRPD and Optional Protocols to the CRPD and CRC. It praised projects implemented to protect vulnerable groups and guarantee the protection of their rights. It welcomed efforts relating to non-discrimination, especially by promoting equality on the basis of sexual orientation, age, religion, gender and race. Armenia made recommendations.
40. Australia commended Malta’s commitment to human rights and welcomed legislative steps to overcome discrimination and hate crimes based on gender identity and sexual orientation. It welcomed the extension of the mandate of the National Commission for the Promotion of Equality. It noted the growing participation of women in the workforce and at high level of government. Australia encouraged Malta to continue addressing the challenges of increasing irregular migration. Australia made recommendations.
41. Austria commended Malta’s efforts since its previous UPR, particularly the establishment of a ministry responsible for civil liberties. It praised the provision of an efficient migration and asylum system but encouraged Malta to abolish detention for migrant children. It noted progress in the equality of LGBT individuals, but regretted that Malta had not ratified the Optional Protocol to the CEDAW. Austria made recommendations.
43. Belgium commended Malta’s appointment of a Minister responsible for civil liberties and new initiatives to protect minors, the rights of people with disabilities and the right of equality. Belgium was concerned by the traditional gender stereotypes present in Maltese society and that women were still not fully integrated in political and economic life and suffered discrimination. Belgium made recommendations.
44. Brazil commended Malta’s national report, which comprehensively addressed the issues raised during its previous UPR. It welcomed progress concerning LGBT rights, namely the designation of sexual orientation and gender identity as an aggravating circumstance in criminal offences and the extension of the definition of “discrimination” to include discrimination against LGBT individuals. Nonetheless detention conditions of migrants remained an issue of major concern. Brazil made recommendations.
49. Cyprus asked Malta for an assessment of the extension of the remit of the National Commission for the Promotion of Equality to cover equal treatment on the grounds of gender and family responsibilities and gender identity in employment. It requested information on the results of the project aimed at improving women’s access to employment and participation in the labour markets. Cyprus made a recommendation.
59. Iceland applauded signature of the Council of Europe Convention on preventing and combating violence against women and domestic violence, but expressed concern regarding prevalence of gender-based violence. Iceland urged strengthened measures against trafficking. It welcomed the extended remit of the National Commission for the Promotion of Equality and encouraged policies to overcome traditional gender stereotypes, ensure equal employment opportunities and strengthen women’s representation in decision-making. Iceland made recommendations.
68. China appreciated Malta’s efforts to implement accepted recommendations of the first UPR. It commended efforts to promote equality in terms of age, race, gender, religion and gender orientation and to protect the rights of vulnerable groups including women, children and persons with disabilities, as well as promoting health services. China made a recommendation.
69. The Netherlands commended the rescue at sea of migrants, and collaboration through the European Asylum Support Office in Valetta, noting the particular vulnerability of unaccompanied minors. It applauded progress made in fighting discrimination on grounds of sexual orientation and gender identity. The Civil Unions Bill, which would recognize same-sex partnerships, would be welcome. It expressed concern about criminalization of abortion in all cases. It made recommendations.
72. Norway commended the Civil Liberties Law to allow equal rights for same-sex civil unions, pursuant to recommendations accepted during the first cycle of the UPR. Norway referred to recommendations to improve detention conditions for foreign nationals and proposals for improving the asylum system. It recalled efforts to move from punishment to reform in correctional facilities, but noted reports had expressed concern about conditions at the Corradino Facility. Norway made recommendations.
98. In response to the question on same-sex couples, the delegation [of Malta] informed that the legislative initiatives were launched to provide for the possibility of a civil union between same-sex couples.
IV. Conclusions and/or recommendations
The following recommendations have been accepted:
102.51. Continue taking measures to eradicate gender discrimination and to promote effective equality and the overcoming of traditional stereotypes, for instance through awareness raising campaigns or programs at the education field (Spain);
102.64. Adopt further measures to combat all forms of discrimination, including discrimination based on sexual orientation and gender identity (Norway);
102.65. Further progress in combating all forms of discrimination, including against LGBT persons, through the introduction and implementation of appropriate legislation, policy and practice (United Kingdom of Great Britain and Northern Ireland);
102.66. Continue to strengthen its legislative and institutional frameworks to enhance the rights of LGBTI people (Australia);
102.96. Provide, in accordance with its obligations under international human rights law instruments, effective protection for the family as the fundamental and natural unit of society (Egypt);
102.99. Take concrete steps in ensuring comprehensive sexuality education for children and young people (Finland).
The following recommendations are noted:
102.95. Sustain its policy that recognizes the family, based on the stable relationship between a man and a woman, as the natural and fundamental unit of society (Holy See).
V. Adoption of the Report
The report of the working group was adopted at the 25th regular session of the Human Rights Council in March 2014.
STATEMENTS
Malta
In its statement Malta addressed plans to set up a NHRI in accordance with the Paris Principles and the promotion of rights for vulnerable groups. With regard to equality the government indicated that a bill on civil unions is currently being discussed in Parliament for two persons of the same or of different sex. (…)
A consequence of this Bill is the strengthening of M alta’s laws on discrimination. Persons who use any threatening, abusive or insulting words or behaviour, or else display any written or printed material which is threatening, abusive or insulting with the intent of stirring up violence or hatred on these grounds becomes liable to imprisonment upon conviction.
This amendment will ensure that no law entails any provision that is discriminatory, nor may any person acting by virtue of any written law cause a person to experience discriminatory treatment on the ground of sexual orientation.
While the Government of Malta remains committed to sustain the traditional family model, as the fundamental unit of society, it has embarked upon legislation that does not discriminate against any form of other family model.
Malta further safeguards the rights of transgender persons. In fact, amendments to the Civil Code removed the legal obstacles for persons who have undergone a legally recognised change in sex to be considered as pertaining to the acquired sex for all intents and purposes of civil status, including marriage.
Council of Europe
We thank the Government of Malta for the recent measures taken to pave the way for the ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence.
The following delegations took the floor to express support for the adoption of Monaco’s UPR report: Djibouti, Libya, Moldova, Togo, Algeria and Cuba .
There was no mention of sexual orientation, gender identity or related issues in NGO statements. These focused mostly on the position of migrants, asylum seekers and refugees. In their statement ACPD and SRI focused on access to safe and legal abortion and reproductive health care services with reference to recommendations by CEDAW, CRC and Special Rapporteurs on Torture and on Health, to decriminalize, review existing legislation and include into national health policy.
VI. Further information
UPR Documentation