| For a summary of Malta’s review at the second UPR cycle please click here. |
5th UPR session
Date of review: 6 May 2009
Date of report adoption: 4 June 2009
Document number: A/HRC/12/7
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SUMMARY SOGIESC issues during Malta’s 1st UPR review |
I. SOGIESC issues/recommendations identified by NGOs
Equality and non-discrimination
4. The Malta Gay Rights Movement and ILGA-Europe (MGRM&ILGA-Europe) noted that legal protection for lesbian, gay, bisexual and transgender/transsexual (LGBT) persons in the area of employment exists through legislation on equal opportunities and equal treatment of men and women in matters of employment and occupation. However, MGRM&ILGA-Europe noted that recent research conducted by MGRM illustrates that in the past two years discrimination against LGBT persons remains widespread in a number of areas, such as employment, provision of goods and services, healthcare and education. MGRM&ILGA-Europe urged the Maltese Government to adopt legislation to prohibit all forms of discrimination – including discrimination based on sexual orientation and gender identity – in all areas of life.
Right to life, liberty and security of the person
6. During his 2003 visit to Corradino Prison, the [Council of Europe] Commissioner [for Human Rights] found that sexual offenders and homosexual prisoners were kept in a separate wing so as to avert any risk of attack or violence from other prisoners. That building had cells which received no direct light and were extremely damp. In his report, he recommended transferring those prisoners to a vacant part of the prison offering better detention conditions. In his follow-up report on Malta (2003-2005), the Commissioner regretted that no substantial changes had been made to improve the living and detention conditions of vulnerable prisoners, repeating his suggestion that this small group of prisoners be moved to another part of the prison where detention conditions were more in line with the recent recommendation on the European Prison Rules, so as to allay all suspicion that their harsh conditions are being allowed to continue because of the nature of their offences.
Right to privacy, marriage and family life
13. MGRM and ILGA-Europe noted that there is no possibility for same-sex couples in Malta to register or legalise their relationship. Same-sex marriage or partnerships registered in countries that allow such unions are not recognized by the Maltese State. Second parent adoption is also not possible. This lack of legal recognition leads to discrimination in access to housing, inheritance rights, the possibility of joint tax returns, visitation rights, emergency and family leave among other rights. MGRM and ILGA-Europe urged the Maltese Government to adopt legislation to recognize the relationship between two partners, irrespective of their sex and; to take all necessary legislative, administrative and other measures to ensure that any obligation, entitlement, privilege or benefit available to different-sex unmarried partners is equally available to same-sex unmarried partners.
14. MGRM and ILGA-Europe reported that according to Maltese law, only unmarried transgender persons who have undergone irreversible gender reassignment surgery may change the indication of sex in official documents. The procedure is lengthy and costly and involves a court procedure whereby the post-operative transgender person must undergo a medical examination by court appointed experts. This is the cause of embarrassment and humiliation to the individual concerned. Moreover, MGRM and ILGA–Europe indicated that the change in legal sex is claimed by the state to be purely for reasons of privacy and to prevent embarrassment to the transgender individual concerned and is not recognized for purposes such as marriage. This has been borne out by a recent decision by the Civil Court which revoked a previous ruling that had given a transsexual woman the right to marry. The case is currently before the Maltese Constitutional Court. MGRM and ILGA-Europe urged the Maltese Government to take all necessary legislative, administrative and other measures to fully respect and legally recognize each person’s self-defined gender identity; to ensure that such procedures are efficient, fair and non-discriminatory, and respect the dignity of the persons concerned; to ensure that changes to identity documents are recognized in all contexts where the identification or disaggregation of persons by gender is required by law or policy, including marriage.
Right to social security and to an adequate standard of living
16. MGRM and ILGA-Europe reported that there is a general lack of professional expertise in the area of transgender health and made reference to research that indicates that transgender persons experience difficulty in accessing treatment for financial reasons since hormone therapy and gender reassignment are not covered by the National Health Service and transgender persons avoid doing routine health checks as they fear adverse reaction from healthcare professionals. MGRM and ILGA-Europe urged the Maltese Government to undertake targeted programmes to provide social support for all persons experiencing gender transitioning or reassignment.
II. Excerpts on SOGIESC issues from the national report
B. Human rights institutions
1. The National Commission for the Promotion of Equality
5. The National Commission for the Promotion of Equality (NCPE) was appointed in January 2004, in accordance with the “Equality for Men and Women Act”; with responsibility in the areas of: discrimination on the grounds of gender, race, ethnic origin, religion or belief, age, or sexual orientation in the provision of goods and services, and gender and family responsibilities in employment. One of the NCPE’s principal functions is to investigate complaints made by individuals who feel that they have been discriminated against on the basis of any of the listed areas of responsibility. The Commission may also initiate investigations on any matter involving an act or omission related to discrimination that is allegedly unlawful.
III. PROMOTION AND PROTECTION OF HUMAN RIGHTS
C. Solidarity services
2. Employment and industrial relations
38. The Employment and Industrial Relations Act is the parent act of the Equal Treatment in Employment Regulations (Legal Notice 461 of 2004) which give effect to the European Directives on discrimination and implement the principle of equal treatment in relation to employment by laying down minimum requirements to combat discriminatory treatment on the grounds of religion or religious belief, disability, age, sex, sexual orientation, and racial or ethnic origin. As the Employment and Industrial Relations Act, these regulations address all stages of the employment life, including access to employment, promotions, training, remuneration and other conditions of employment, and membership of, and involvement in, any organisation of employees and employers or professional organisation.
V. KEY NATIONAL PRIORITIES
B. Social welfare
104. In order to address on-going social welfare concerns and emerging needs in the area of social welfare, for the next couple of years Malta is proposing the following three over-arching policy priority objectives: […] (c) Promoting equality of opportunities so as to ensure full social participation regardless of age, disability, gender, race, belief and sexual orientation by: (i) Combating discrimination; (ii) Promoting the integration of third country nationals; (iii) Mainstreaming social inclusion and anti-discrimination issues.
III. Excerpts on SOGIESC issues by UN agencies
No references.
IV. References to SOGIESC issues during the Working Group review
34. Marriage can only be contracted by people of opposite sex and there are no plans to change this. But discrimination based on sex and sexual orientation is illegal and individuals are protected against such discrimination by the institutions set up by the state.
47. France […] asked about plans to further strengthen existing legal arrangements against discrimination based on sexual orientation or gender identity, particularly in employment, health and education. […] France recommended […] (b) providing for arrangements for same-sex couples to enjoy some of the rights and obligations enjoyed by non same-sex couples […].
49. While welcoming efforts to combat discrimination, including on sexual orientation grounds, [the Netherlands] noted reports of continued discrimination in this regard, as well as NGO reports on the denial of legal recognition of same-sex partnerships. The Netherlands recommended (b) taking further measures to advance equality on the ground of sexual orientation and gender identity, and among others using as a guide for policy- making the Yogyakarta principles.
70. [The Czech Republic] recommended […] (e) adopting further measures to fight discrimination and promote, including through awareness raising campaigns, the realization of human rights by all persons belonging to minorities, including foreigners, refugees, persons with disabilities and persons of minority, sexual orientation or gender identity.
73. Belgium joined various treaty bodies’ concerns on the lack of education relating to sexuality and reproduction and asked about specific measures to strengthen such programmes. It asked about measures to improve adolescent access to advisory services, also outside of the school environment. It recommended (a) putting in place an adequate health education programme and ensuring effective access to health advisory services, notably for matters related to sexuality, sexual and reproductive rights. Regarding the rights of homosexual, bisexual and transgender persons, it noted that legal protection in employment exists. But according to some non-governmental organizations, homosexual, bisexual and transgender persons remain discriminated against in employment, provision of goods and health services and education. Belgium asked how the National Commission for the Promotion of Equality fights discrimination based on sexual orientation and if equal attention is paid to all forms of discrimination, whatever the grounds. Belgium recommended that Malta (b) do its outmost to combat all forms of discrimination, including discrimination based on sexual orientation.
V. Conclusions and/or recommendations
Malta noted the following recommendations:
80.13. Adopt further measures to fight discrimination and promote, including through awareness-raising campaigns, the realization of human rights by all persons belonging to minorities, including foreigners, refugees, persons with disabilities and persons of minority sexual orientation or gender identity (Czech Republic);
80.22. Do its utmost to combat all forms of discrimination, including discrimination based on sexual orientation (Belgium);
80.22b Take further measures to advance equality on the ground of sexual orientation and gender identity, using the Yogyakarta Principles, among others, as a guide for policy-making (Netherlands);
80.23. Provide for arrangements for same-sex couples to enjoy some of the rights and obligations enjoyed by non-same-sex couples (France);
80.39. Put in place an adequate health education programme and ensure effective access to health advisory services, notably for matters related to sexuality and sexual and reproductive rights (Belgium).
VI. Further information
You will find all documents relating to Malta’s first review at UPR-Info and OHCHR’s websites.