'Transgender marriage' up next?

Experts say even the U.S., embroiled in its own battle over same-sex marriage, could be affected by the ruling.

The case, Joanne Cassar vs. Malta, centers on a “transgender” person – a man who underwent surgery in 2005 to resemble a woman – seeking government recognition and sanction of a “marriage” to another man.

Following appeals, the deeply Catholic island nation in the Mediterranean Sea eventually refused to grant the plaintiff permission to marry a male partner.

For Cassar, however, the decision was unacceptable. Last summer, Cassar sued the government of Malta with the ECHR, claiming that a “right to marriage” outlined in the European Convention on Human Rights had been violated.

The European rights court in Strasbourg, which ruled in the landmark 2002 Goodwin vs. United Kingdom judgment that marriage could not be based on biological sex, eventually agreed to hear the case. The outcome, however, is far from certain.

Malta’s constitutional court clearly acknowledged the decade-old marriage ruling by the ECHR, which stated that the European court was “not persuaded that at the date of this case it can still be assumed that these terms [man and woman] must refer to a determination of gender by purely biological criteria.”

However, Malta’s high court refused to apply the ECHR ruling in the Cassar case, arguing that the nation was not bound by the European decision, because the ruling was “social engineering” based on dubious notions of evolving societal norms, not law.