Chapter 540

GENDER IDENTITY, GENDER EXPRESSION AND SEX CHARACTERISTICS [ CAP. 540. 1 CHAPTER 540 GENDER IDENTITY, GENDER EXPRESSION AND SEX CHARACTERISTICS ACT To provide for the recognition and registration of the gender of a person and to regulate the effects of such a change, as well as the recognition and protection of the sex characteristics of a person. 14th April, 2015 ACT XI of 2015 , as amended by Acts XX of 2015 and LVI of 2016 ,XIII of 2018 and XXV of 2024. 1. The short title of this Act is the Gender Identity, Gender Expression and Sex Characteristics Act. 2. In this Act, unless the context otherwise requires: "acts of civil status" refers to acts of birth, acts of marriage, acts of civil union, cohabitation certificates and acts of death, as the case may be; "Chief Executive Officer" shall have the same meaning assigned to it in the International Protection Act; "Director" means the Director for Public Registry; "gender expression" refers to each person’s manifestation of their gender identity, and, or the one that is perceived by others; "gender identity" refers to each person’s internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance and, or functions by medical, surgical or other means) and other expressions of gender, including name, dress, speech and mannerisms; "gender marker" refers to the identifier which classifies persons within a particular sex category; "interdisciplinary team" refers to the team established by article 14; "lived gender" refers to each person’s gender identity and its public expression over a sustained period of time; "Minister" means the Minister responsible for equality; "minor" means a person who has not as yet attained the age of sixteen years; "non-binary gender" refers to all gender identities other than male or female; "Notary" means a person holding a warrant to practise as a Notary Public in Malta in accordance with the Notarial Profession and Notarial Archives Act; and "sex characteristics" refers to the chromosomal, gondal and Short title. Interpretation. Amended by: LVI. 2016.2; XXV.2024.3. Cap. 420. 2 CAP. 540.] Emancipation. Added by: XXV.2024.4. Right to gender identity. GENDER IDENTITY, GENDER EXPRESSION AND SEX CHARACTERISTICS anatomical features of a person, which include primary characteristics such as reproductive organs and genitalia and, or in chromosomal structures and hormones; and secondary characteristics such as muscle mass, hair distribution, breasts and, or structure. 2A. Persons who have reached the age of sixteen (16) years, but have not yet reached the age of eighteen (18) years, for all intents and purposes of this Act, shall be considered as of age: Provided that the rights and interests of children stipulated in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989 shall nonetheless apply for persons mentioned in this article. 3. (1) All persons being citizens of Malta have the right to (a) the recognition of their gender identity; (b) the free development of their person according to their gender identity; (c) be treated according to their gender identity and, particularly, to be identified in that way in the documents providing their identity therein; and (d) bodily integrity and physical autonomy. (2) Without prejudice to any provision of this Act (a) a person’s rights, relationship and obligations arising out of parenthood or marriage shall in no way be affected; (b) the person’s rights arising out of succession, including but not limited to any testamentary dispositions made in one’s favour, and any obligations and, or rights subjected to or acquired prior to the date of change of gender identity shall in no way be affected; and (c) any personal or real right already acquired by third parties or any privilege or hypothecary right of a creditor acquired before the change in the gender identity of the person shall in no way be affected. (3) The gender identity of the individual shall be respected at all times. (4) The person shall not be required to provide proof of a surgical procedure for total or partial genital reassignment, hormonal therapies or any other psychiatric, psychological or medical treatment to make use of the right to gender identity. Change of gender identity. Amended by: XX. 2015.3; XXV.2024.5. 4. (1) It shall be the right of every Maltese citizen to request the Director to change the recorded gender to the female gender, to the male gender, or to a non-binary gender and, or name, if the person so chooses to change the name, in order to reflect that person’s self-determined gender identity: Provided that without prejudice to the dispositions of any other law, a person may only request to change the name by means of the procedure in accordance with this Act, if together with that GENDER IDENTITY, GENDER EXPRESSION AND SEX CHARACTERISTICS [ CAP. 540. request that person is also requesting to change the recorded gender: Provided further that in the case of a non-binary gender, the gender marker shall in any act or document be marked with the letter "X". (2) The request shall be made by means of a note of registration published in accordance with article 5(3). (3) The Director shall not require any other evidence other than the declaratory public deed published in accordance with article 5. (4) The Director shall within fifteen days from the filing of the note of enrolment by the Notary at the public registry, enter a note in the act of birth of the applicant. (5) The provisions of article 249 of the Civil Code shall mutatis mutandis apply. (6) (a) The person who made a request in accordance with sub-article (1) shall also be entitled to demand that a full certificate of the act of birth showing the particulars resulting from the annotations be issued to them so however that there shall be indicated on such certificates the annotations that have been made upon it by virtue of a decree of a court or in terms of the procedure established under this Act without the details of the said annotations being specified. (b) Every person who has made use of the procedure in accordance with article 257 of the Civil Code and to whom a birth certificate has been issued in accordance with article 257C of the said Code shall be entitled also to demand the issue of his or her complete birth certificate which results from these annotations and there shall be indicated on the same certificate the annotations that were made by virtue of the court judgment given in accordance with the provisions of article 257 of the said Code, without the details of the specific annotations. (c) A person whose request to the Court of Revision of Notarial Acts, for a correction in the name and gender assigned to them in their act of birth, shall be entitled to demand that a full certificate of their act of birth showing the particulars resulting from the annotations be issued to them so however that there shall be indicated on such certificate that annotations have been made upon it by virtue of a decree of a court without the details of the said annotations being specified. (d) Within seven days from receipt of a request made for the issue of a birth certificate drawn up in accordance with this article, the Director shall not give any information contained in the register indicating the original act of birth except insofar as provided in this article. Cap. 16. 3 4 CAP. 540.] GENDER IDENTITY, GENDER EXPRESSION AND SEX CHARACTERISTICS (7) The said information or copy of the original act of birth may be given: (a) with the consent of the person to whom the certificate refers; or Cap. 420. Change of gender identity of adopted persons. Added by: XX.2015.4. Amended by: XXV.2024.6. (b) when there is no such consent, upon an order of the Court (Voluntary Jurisdiction Section) or of another Court taking cognizance of a cause where the necessity of the presentation of that certificate or information arises, where the Court is satisfied that the issuing of the said certificate or information is necessary to defend or safeguard a right or a legitimate interest of the person making the demand which, after taking into consideration all relevant circumstances, the court’s considerations should prevail over the right to privacy of the person to whom the certificate refers. (8) A person who was granted international protection in terms of the International Protection Act, and in terms of any other subsidiary legislation issued under the International Protection Act, and who wants to change the recorded gender and name, if the person chooses to change the name, shall make a declaration confirmed on oath before the Chief Executive Officer declaring the person’s self-determined gender and name. The Chief Executive Officer shall record such amendment in their asylum application form and protection certificate within fifteen days. 4A. (1) The Court which would have issued the court decree of adoption may, on an application of an adopting person in the case of a minor or an adopted person, amend the decree by changing the gender of the person and the name if the person chooses to change his name; and when such decree is so amended, the Court Registrar shall see that the amendment is communicated to the Director within fifteen days from the delivery of such decree; and every correction or addition in the Register of Adopted Persons or the deletion of the registration marker on the register of acts of birth or the Register of Adopted Persons that is needed shall be made in that manner: Provided that before the end of the fifteen days from the award of the amending decree, the adopted person shall make a public declaratory act in accordance with article 5 that reflects the changes ordered in the Court decree. (2) When the adoption decree is amended every authenticated copy of the relative registration in the Register of Adopted Persons that can be issued by virtue of article 269(5) of the Civil Code shall be a copy of the registration so amended, without the reproduction of any note or marker of the amendment or something which has been deleted by virtue of such power; and every authentic copy of registration in any registry that is a registration the marker of which has been deleted shall be considered as an exact copy only if the marker and also the deletion are not shown therein. GENDER IDENTITY, GENDER EXPRESSION AND SEX CHARACTERISTICS [ CAP. 540. 5. (1) The drawing up of the declaratory public deed shall contain the following elements: (a) a copy of the act of birth of the applicant; 5 Functions of the Notary. Amended by: XXV.2024.7. (b) a clear, unequivocal and informed declaration by the applicant that one’s gender identity does not correspond to the assigned sex in the act of birth; (c) a specification of the gender particulars; (d) the name with which the applicant wants to be registered; (dd) a declaration of the acts of civil status of the applicant, other than the act of birth, as well as any other act of civil status wherein the applicant appears, with the progressive registration number and year of each one; and (e) all the prescribed elements required in accordance with the Notarial Profession and Notarial Archives Act. (2) The Notary shall not request any psychiatric, psychological or medical documents for the drawing up of the declaratory public deed. (3) Every Notary receiving such an act must deliver to the Director a note in accordance with article 50 of the Notarial Profession and Notarial Archives Act. 6. The date of entry of the note by the Director in accordance with sub-article (4) of article 4 shall be considered, for all purposes of the law, as the effective date from when the person is considered to belong to the gender indicated in the note. 7. (1) The persons exercising parental authority over the minor or the tutor of the minor may file an application in the registry of the Civil Court (Voluntary Jurisdiction Section) requesting the Court to change the recorded gender and name of the minor in order to reflect the minor’s gender identity. Cap. 55 Cap. 55. Effective date. Minors. Amended by: XXV.2024.8. (2) When an application under sub-article (1) is made on behalf of a minor, the Court shall: (a) ensure that the best interests of the child as expressed in the Convention on the Rights of the Child be the paramount consideration; and (b) give due weight to the views of the minor having regard to the minor’s age and maturity: Provided that in any case, the Court shall ensure that any process, service or assessment that can be used to evaluate the requisites of this sub-article shall respect those rights stipulated under article 3 and the provisions of the Affirmation of Sexual Orientation, Gender Identity and Gender Expression Act, so however that the Court shall also give due consideration to any process, service or evaluation that the minor had already gone through, and where possible, not subject the minor to additional processes. (3) If the Court accedes to the request made in accordance with Cap. 567. 6 CAP. 540.] GENDER IDENTITY, GENDER EXPRESSION AND SEX CHARACTERISTICS sub-article (1), the Court shall order the Director to change the recorded gender and name of the minor in the act of birth of the minor, by means of an annotation in the margin. (4) The persons exercising parental authority over the minor or the tutor of the minor whose gender has not been declared at birth, may before the minor attains the age of sixteen (16), by filing an application in the registry of the Civil Court (Voluntary Jurisdiction Section), declare the gender and the name of the minor, if the minor chooses to change the name and following the express consent of the minor, taking into consideration the evolving capacities and the best interests of the minor, the Civil Court (Voluntary Jurisdiction Section) shall order the Director to register the gender and the name of the minor in the act of birth of the minor, by virtue of an annotation in the margin: Provided that persons of sixteen (16) and seventeen (17) years, whose gender has not yet been declared, shall before they attain the age of eighteen (18) years declare their gender by virtue of the procedure as established under the provisions of article 4: Provided further that a declaration of gender carried out in terms of the preceding proviso shall not be considered as an amendment to the act of birth for the purposes of article 8(2). Amendment to the act of birth. Amended by: XXV.2024.9. 8. (1) Accessibility to the full act of birth shall be limited solely and exclusively to the person who has attained the age of sixteen (16) years and to whom that act of birth relates or by a court order. (2) An amendment to the act of birth made in accordance with article 7 may be further amended by the minor when he reaches the age of sixteen (16) years by virtue of the procedure established in article 4: Act No. XXV of 2024. Foreign decisions. Amended by: LVI. 2016.3. Substituted by: XXV.2024.10. Provided that without prejudice to the provisions of this subarticle, an amendment to the act of birth made in accordance with this Act shall only be amended further by a Court order: Provided further that any person who had made a request in accordance with article 4(1) before the enactment of the Gender Identity, Gender Expression and Sex Characteristics (Amendment) Act, 2024 may, by not later than five (5) years from the coming into force of the said Act, make a new request to change the recorded gender to a non-binary gender. In such a case, there shall be made an express reference to this proviso and the preceding note of registration in the declaratory public deed in accordance with article 5. 9. (1) A final decision about any person’s gender identity which has been determined by a competent foreign court or responsible authority acting in accordance with the law of that country shall be recognised in Malta by virtue of a public deed of recognition and the provisions of article 5(2) and (3) shall apply mutatis mutandis. (2) The public deed of recognition shall contain the following elements: GENDER IDENTITY, GENDER EXPRESSION AND SEX CHARACTERISTICS [ CAP. 540. 7 (a) a legal copy of the final decision which is to be recognised, and when it is not in the Maltese or English language it shall be translated to one (1) of these languages; (b) a legal copy of a valid identification document issued by the country where the decision was determined; (c) declaration of the acts of civil status of the applicant registered in Malta, as well as any other act of civil status wherein the applicant appears registered in Malta, with the progressive registration number and year of each one (1); and (d) all the prescribed elements required in accordance with the Notarial Profession and Notarial Archives Act. Cap. 55. (3) In the case of minors, a request for recognition of a final decision about the minor’s gender identity which has been determined by a competent foreign court or responsible authority acting in accordance with the law of that country, shall be made by means of an application filed in the registry of the Civil Court (Voluntary Jurisdiction Section) by the persons exercising parental authority over the minor or the tutor of the minor and the provisions of article 7 shall apply mutatis mutandis. (4) Gender markers, not recognised by this Act, but recognised by a competent foreign court or responsible authority acting in accordance with the law of that country shall be recognised in Malta. (5) When a person who has made a request in accordance with this article has acts of civil status registered in Malta, the provisions of article 10 and the provisions of this Act relating to annotations required by the Director, shall, as the case may be, apply mutatis mutandis to this article. 9A. (1) A person of any nationality who is detained in any gender-segregated facility in Malta may have such person’s gender recognised by means of an affidavit confirming such lived gender and the intention of the person to continue living according to such gender throughout the period of detention: Provided that the relevant authority that receives the affidavit provided for in this sub-article shall, after consulting with the person concerned, make those adjustments that do not impose a disproportionate burden on it, where it is necessary to provide reasonable accommodation for that person. (2) The affidavit referred to in sub-article (1) shall be subject to the procedures set out in the Code of Organization and Civil Procedure. (3) The affidavit mentioned in sub-article (1) shall cease to have effect upon the expiration of the period of detention. Recognition of gender identity in detention. Added by: LVI. 2016.4. Amended by: XXV.2024.11. Cap. 12. 8 CAP. 540.] Amendments in other official documents. Amended by: XX. 2015.5; XXV.2024.12. Cap. 614. GENDER IDENTITY, GENDER EXPRESSION AND SEX CHARACTERISTICS 10. (1) The Director shall, within fifteen (15) days from the filing of the note of enrolment by the notary in terms of article 5 and without prejudice to article 9 of the Cohabitation Act, amend the acts of civil status which would have been declared in accordance with article 5(1)(dd): Provided that the person shall be entitled to demand to be given the complete certificate of the civil status acts resulting from these annotations and there shall be indicated on the same acts the annotations made by virtue of this Act, without the details of the specific annotations. Cap. 258. (2) A person, in respect of whom an amendment to the act of birth has been made in accordance with the provisions of this Act shall, within fifteen days from the date specified in article 6, request the authorised officers in terms of the Identity Card and other Identity Documents Act to amend the identity card and other identification documents of the person and to issue a new identity card and other identification documents indicating the gender and the name of the person reflecting the amendment made in the act of birth of the person. (3) A person may also, on the payment of such fee as may be prescribed, request any other competent authority, department, employer, educational or other institution to issue any official document or certificate relative to them indicating the change in gender and name of the person. Offences. Cap. 9 11. (1) Whosoever shall knowingly expose any person who has availed of the provisions of this Act, or shall insult or revile a person, shall upon conviction be liable to a fine (multa) of not less than one thousand euro (€1,000) and not exceeding five thousand euro (€5,000). (2) Saving the provisions of article 83B of the Criminal Code, when an offence is motivated by gender expression and sex characteristics, the punishment shall be that laid down in the said article. (3) Whosoever knowingly violates any of the provisions of this Act, shall upon conviction be liable to a fine (multa) of not less than five hundred euro (€500) and not exceeding one thousand euro (€1,000). Data protection. Cap. 377. Cap. 586. 12. A person who in the course of the discharge of official duties was involved with a matter relating to this Act, shall not disclose such matter in accordance with the Professional Secrecy Act and the Data Protection Act: Cap. 55. Provided that the copies of the public deed referred to in article 5 published in terms of the Notarial Profession and Notarial Archives Act shall not be deemed to have been issued in violation of this article. Antidiscrimination and promotion of equality. Amended by: XXV.2024.13. 13. (1) Every norm, regulation or procedure shall respect the right to gender identity. No norm or regulation or procedure may limit, restrict, or annul the exercise of the right to gender identity, and all norms must always be interpreted and enforced in a manner that favours access to this right. GENDER IDENTITY, GENDER EXPRESSION AND SEX CHARACTERISTICS [ CAP. 540. 9 (2) The public service has the duty to ensure that unlawful sexual orientation, gender identity, gender expression and sex characteristics discrimination and harassment are eliminated, whilst its services must promote equality of opportunity to all, i r r e s p e c t i v e o f s e x u a l o r i e n t a t i o n , g e n d e r i d e n t i t y, g e n d e r expression and sex characteristics. (3) The provisions of this Act shall apply to the private sector, all public sector and public service departments, agencies and all competent authorities that maintain personal records and, or collect gender information. Such forms, records and or information shall be assessed and modified to reflect the new standards established by this Act within a maximum of one (1) year from the date of entry into force of the Gender Identity, Gender Expression and Sex Characteristics (Amendment) Act, 2024. 14. (1) It shall be unlawful for medical practitioners or other professionals to conduct any sex assignment treatment and, or surgical intervention on the sex characteristics of a minor which treatment and, or intervention can be deferred until the person to be treated can provide informed consent: Provided that such sex assignment treatment and, or surgical intervention on the sex characteristics of the minor shall be conducted if the minor gives informed consent through the person exercising parental authority or the tutor of the minor. (2) Medical practitioners or other professionals in breach of this article sh all, on conviction, be li able to the pu nishm ent o f imprisonment not exceeding five years, or to a fine (multa) of not less than five thousand euro (€5,000) and not more than twenty thousand euro (€20,000). (3) In exceptional circumstances treatment may be effected once agreement is reached between the interdisciplinary team and the persons exercising parental authority or tutor of the minor who is still unable to provide consent: Provided that medical intervention which is driven by social factors without the consent of the minor, will be in violation of this Act. (4) The interdisciplinary team shall be appointed by the Minister for a period of three years which period may be renewed for another period of three years. (5) The interdisciplinary team shall be composed of those professionals whom the Minister considers as appropriate. (6) When the decision for treatment is being expressed by a minor with the consent of the persons exercising parental authority or the tutor of the minor, the medical professionals shall: (a) ensure that the best interests of the child as expressed in the Convention on the Rights of the Child be the paramount consideration; and (b) give weight to the views of the minor having regard to the minor's age and maturity. Act No. XXV of 2024. Right to bodily integrity and physical autonomy. Amended by: LVI. 2016.2; XIII.2018.31. 10 Health services. Amended by: LVI. 2015.5. CAP. 540.] GENDER IDENTITY, GENDER EXPRESSION AND SEX CHARACTERISTICS 15. (1) All persons seeking psychosocial counselling, support and medical interventions relating to sex or gender should be given expert sensitive and individually tailored support by psychologists and medical practitioners or peer counselling. Such support should extend from the date of diagnosis or self-referral for as long as necessary. (2) The pathologisation of any form of sexual orientation, gender identity and, or gender expression as may be classified under the International Classification of Diseases or any other similar internationally recognised classification, shall be null and void in Malta. The nullity of such classification shall not impact negatively the provision of any healthcare service related to sex and, or gender. Treatment protocol. 16. (1) The Minister, after consulting the Minister responsible for health, shall appoint a working group. (2) The working group shall consist of a Chairperson and nine members. (3) The Chairperson shall be a medical doctor with at least twelve years experience. (4) The members shall be three experts in human rights issues, three psychosocial professionals and three medical experts. (5) The Minister shall appoint the working group within three months of the entry into force of this Act. (6) The members of the working group shall review the current medical treatment protocols in line with current medical best practices and human rights standards and shall, within one year from the date of their appointment, issue a report with recommendations for revision of the current medical treatment protocols. Power to make regulations. 17. The Minister may make regulations to give better effect to any of the provisions of this Act and generally to regulate gender identity in conformity with the provisions of this Act.