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Genital mutilation: How Malta's law fails intersex children

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UPDATE: Article in the Times of Malta (15.05.2019)

3rd Intersex Forum 2013Photo: The participants of the 3rd International Intersex Forum, Malta 29.11.–01.12.2013

Zwischengeschlecht.org on FacebookIGM = CRIME, Not 'Health Care' or 'Therapy'!Malta is world-famous for being the first state to formally outlaw intersex genital mutilation in 2015, despite that the law failed to include any sanctions and IGM continues both domestically and overseas. After tacitly amending the law last year, the Maltese government now claims to have “equalis[ed] the penalties applicable to intersex genital mutilation to the penalties applicable to female genital mutilation”. But is this really true? Intersex NGO StopIGM.org investigates:

How the Maltese GIGESC Act Fails Intersex Children

In 2015, Malta passed the Gender Identity, Gender Expression and Sex Characteristics Act (GIGESC Act), [25] which under art. 14 explicitly makes it “unlawful” to perform IGM practices, but initially included no sanctions at all. A 2018 amendment [26] eventually introduced sanctions, namely “punishment of imprisonment not exceeding five years, or [...] a fine (multa) of not less than five thousand euro (€5,000) and not more than twenty thousand euro (€20,000)” (GIGESC art. 14.(2)).

The Maltese Government claims these newly introduced sanctions would “equalise the penalties applicable to intersex genital mutilation to the penalties applicable to female genital mutilation”. [27] However, this is not true, as the sanctions for FGM are actually double (“imprisonment for a term of five to ten years” with no possibility to get off with a fine) and included in the Criminal Code (art. 251E.). [28]

Similarly, regarding IGM there are no extraterritorial protections, while regarding FGM “extraterritoriality [is] in force, we aim to ensure that if female genital mutilation is done to girls when they go abroad, the crime will be prosecuted in Malta”. [29]

Regarding IGM, the GIGESC Act further fails to meet the stipulation of the CRC-CEDAW Joint General Comment No. 18/31 “on harmful practices” that “children subjected to harmful practices have equal access to justice, including by addressing legal and practical barriers to initiating legal proceedings, such as the limitation period (JGC 18/31, para 55 (o)).

Further, in the case of FGM, not only those who perform the actual deed are guilty under the law, but also “[w]hosoever aids, abets, counsels, incites, procures or coerces a female to excise, infibulate or otherwise mutilate the whole or any part of her own genitalia, shall be guilty of an offence and shall be liable, on conviction, to the punishment laid down under this article.” (Criminal Code, art. 251E.(6)) On the other hand, in the case of IGM the only ones punishable under the law are the “medical practitioners or other professionals” who perform the actual mutilation domestically (GIGESC art. 14.(1)+(2)), whereas doctors who refer children to be submitted to IGM in foreign hospitals (as it is often the case in Malta, see also p. 9-10) are a priori exempt from prosecution, same as whosoever aiding, abetting, counselling, inciting, procuring or coercing intersex children to be submitted to IGM.

What’s more, according to statements of the Maltese Government, the law as it is exempts IGM 1 “hypospadias repair”, [30] the most frequent IGM practice (and apparently the only one that is performed in Malta itself, see also p. 8-9), as “whether cases of hypospadias are covered by the above prohibition may fall to be determined later by the courts.” [31] For other IGM practices, Malta is sending children overseas for surgery, reportedly to the UK, [32] Belgium, [33] and arguably also to Italy [34] – which the law does not prohibit and punish either.

Conclusion, GIGESC art. 14 aimed at protecting intersex children from IGM practices on the one hand fails to meet the minimal requirements set out by CRC art. 24(3) and the Joint General Comment No. 18, and on the other hand so far the law is simply not enforced.

[25] http://justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=12312&l=1
[26] ACT No. XIII of 2018, para 31, http://justiceservices.gov.mt/DownloadDocument.aspx?app=lp&itemid=29057&l=1
[27] Ministry for European Affairs and Equality (2018), “LGBTIQ Strategy & Action Plan 2018-2022”, p. 7, available at http://www.lgbtiq.gov.mt/
[28] http://www.justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=8574
[29] Helena Dalli, Minister for European Affairs and Equality (04.02.2019),
https://eige.europa.eu/news/female-genital-mutilation-illegal-malta-girls-are-not-safe
[30] Piet de Bruyn (2017), Report: Promoting the human rights of and eliminating discrimination against intersex people, COE Doc. 14404, p. 14, para 47, http://semantic-pace.net/tools/pdf.aspx?doc=aHR0cDovL2Fzc2VtYmx5LmNvZS5pbnQvbncveG1sL1hSZWYvWDJILURXLWV4dHIuYXNwP2ZpbGVpZD0yNDAyNyZsYW5nPUVO&xsl=aHR0cDovL3NlbWFudGljcGFjZS5uZXQvWHNsdC9QZGYvWFJlZi1XRC1BVC1YTUwyUERGLnhzbA==&xsltparams=ZmlsZWlkPTI0MDI3
[31] Ibid.
[32] See 2017 CRPD UK NGO Report, p. 9,
http://intersex.shadowreport.org/public/2017-CRPD-UK-NGO-Coalition-Intersex-IGM.pdf
[33] See 2018 CRC Belgium NGO Report, p. 7,
http://intersex.shadowreport.org/public/2018-CRC-Belgium-NGO-Zwischengeschlecht-Intersex-IGM.pdf
[34] Miriam Dalmas (2017), Consultant Public Health Medicine at Ministry for Health, “Structures and processes for cross-border care referral”, slide 5,
https://ec.europa.eu/health/sites/health/files/ern/docs/20170309_rt3_05_dalmas_pres_en.pdf

2019-CAT-UK-NGO-Coalition-Intersex-IGM

Intersex Genital Mutilations in Malta: 2019 CRC Report
Human Rights Violations Of Children With Variations Of Reproductive Anatomy
IGM in Malta and overseas  Legal gaps and loopholes  Harmful Practice
>>> Download as PDF (758 kb)

See also:
40 UN Reprimands for IGM – and counting ...
“Harmful Medical Practice”: UN, COE, ACHPR, IACHR condem IGM
UN Committee for the Rights of the Child (CRC): IGM = Harmful Practice + Violence
UN Committee against Torture (CAT) 2015: IGM = Inhuman Treatment or Torture
UN Women's Rights Committee (CEDAW): IGM = Harmful Practice
UN Committee on the Rights of Persons with Disabilities (CRPD): Violation of Integrity
UN Human Rights Committee (HRCttee-CCPR) condemns IGM Practices

Zwischengeschlecht.org on Facebook

IGM as a Harmful Practice: UN-CRC Briefing
• IGM: A Survivor's Perspective • Intersex Movement History
• What are Variations of Sex Anatomy?  • What are IGM Practices?
• IGM and Human Rights  • Conclusion: IGM is a Harmful Practice
>>> Download PDF (3.14 MB)     >>> Table of Contents

Zwischengeschlecht.org on Facebook

Eliminating IGM practices by holding the perpetrators accountable via well-established applicable human rights frameworks, including Inhuman Treatment and Harmful Practices – Presentation @ UN expert meeting on Intersex Human Rights

>>> Download PDF (831kb)