Regulating Bodily Practices in a Pluralistic Society: the case of Malta
Paper to be presented at the Workshop for Inter-disciplinary Researchers “Mobilization of Law in Pluralistic Society,” 19-20 May 2017, Evangelische Hochschule Berlin (Protestant University of Applied Sciences, Berlin)
Since 2013, Maltese legislators and policy-makers have been focusing their attention on the body, gender and sexuality and devising different regulatory strategies (including, promulgating ad hoc legislation) to regulate such matters. This paper explores key findings from a research project which takes Malta as a case study on the regulation of bodily practices in a pluralistic society. Specifically, it focuses on Maltese legislation and other regulation which directly concern body practices and interventions which are practised or performed as an expression and affirmation of a person’s gender identity and sexual orientation. Two groups of body practices and relative laws and policies are analysed. The first group concerns practices performed for non-medical reasons and practised by specific ‘migrant’ groups in Malta; namely genital practices on females (today, widely known by the term, ‘Female Genital Mutilation’) and male circumcision on infants. The second group relates to body interventions which are usually resorted to by particular ‘sexual minorities’ which, as opposed to the first group of practices, do not directly affect the cultural identity of the individuals concerned.
This paper discusses the strategic combined use of Maltese legislative and court processes relating to the practices in discussion, along with advocacy, media engagement and social mobilisation. To this effect, a critical evaluation of Maltese judgements is made and these are briefly compared to other European counterparts and to decisions of the European Court of Human Rights. Furthermore, it is proposed to explore the extent to which International and European Union Laws have influenced Maltese policy-making and litigation processes in regard to these practices, paying particular attention to laws which seek to promote cultural diversity, freedom of faith and beliefs and other laws which aim at enhancing personal and physical autonomy. The compatibility of Maltese laws and policies on bodily practices to International and European Union Law is also brought into discussion.
Ultimately, this paper seeks to highlight, on the one hand, the social tensions resulting from values with are perceived or experienced as clashing and, on the other hand, shows how different actors have influenced and shaped the legislative and decision-making processes in Malta. Therefore, Malta is presented as a case study in an attempt to understand the challenges faced by European states when it comes to regulating such bodily practices in plural societies, as well as to comprehend, in the context of migration, the consequential implications for the integration of specific groups, notably migrant groups, within the hosting society.