Credit: ECtHR
In a high profile new ruling, the European Court of Human Rights has held that requiring a transsexual woman to convert her marriage into a civil partnership in order to gain full legal recognition of her gender identity does not violate the European Convention on Human Rights (Convention). ECtHR, Hämäläinen v. Finland [GC], no. 37359/09, ECHR 2014, Judgment of 16 July 2014.
The case, Hämäläinen v. Finland, challenged a Finnish law that required married trans individuals to divorce or transform their marriages into civil partnerships before they could change their identity documents to reflect their new gender. By fourteen votes to three, the Grand Chamber of the Court held that the requirement did not violate the Convention. [ECtHR Press Release] The dissenting judges took issue with the the majority’s characterization of the nature of the State’s obligation (negative versus positive), its reliance on consensus among European States to determine Finland’s margin of appreciation, and the lack of weight given to the applicant’s religious beliefs.
The Applicant’s Pursuit of Gender Identity Recognition
The applicant, Ms. Hämäläinen, was born male and married a woman in 1996; the couple later had a child. The applicant identified as female and, in 2006, changed her first names and sought to have her Finnish identity number and passport changed to reflect her true gender. Finland’s Transsexuals (Confirmation of Gender) Act allows for changes in the population register if the person:
1) provides medical certification that he or she permanently feels that he or she belongs to the opposite gender and lives in the corresponding gender role and that he or she has been sterilised or is for some other reason incapable of reproducing;
2) is over 18 years of age;
3) is not married or in a registered partnership [unless the spouse/partner consents]; and
4) is a Finnish citizen or is resident in Finland.
If the spouse or partner consents to the gender identity recognition, a marriage will be automatically converted into a registered partnership and a registered partnership into a marriage. Parental rights are not directly impacted.
For religious reasons and because they both wished to remain married, Ms. Hämäläinen’s wife refused to give her consent. Thus, the applicant was unable to both remain married and obtain official recognition of her gender identity.
The Finnish courts rejected the applicant’s challenge to the law’s application, finding that the national legislation on recognizing gender identity was not intended to circumvent Finland’s limitation on marriage as between a man and a woman. In 2009, the applicant underwent male-to-female gender reassignment surgery. Her subsequent appeal, asking the Supreme Administrative Court to overturn its earlier decision because her identity number and passport were factually inaccurate and discriminatory, was rejected.
Before the European Court of Human Rights, the applicant claimed that making full recognition of her true gender conditional on divorce or the transformation of her marriage into a registered partnership violated her rights under Article 8 (right to respect for private and family life) and Article 14 (non-discrimination) of the Convention. The case was referred to the Grand Chamber at the applicant’s request, following a November 2012 chamber judgment in which the Court found no violation of articles 8 or 14. See ECtHR, H. v. Finland, no. 37359/09, Judgment of 13 November 2012.
The Grand Chamber declared that the required change of marital status would not violate Ms. Hämäläinen’s human rights. The Grand Chamber’s analysis focused principally on Article 8, asking whether Finland’s balancing of several competing interests was fair and proportional to those interests. After determining that Finland enjoyed a broad margin of appreciation regarding States’ enactment of laws concerning gender recognition and same-sex marriage, the Grand Chamber concluded that Finland’s law was proportionately balanced to meet concerns for the rights of the spouse not seeking gender recognition and the rights of trans individuals under Article 8.
Article 8: Respect for Private and Family Life
Article 8 of the European Convention on Human Rights protects the right to respect for private and family life, protecting individuals from arbitrary interference by public authorities and imposing positive obligations on States to take the action necessary for individuals’ enjoyment of this right. Hämäläinen v. Finland, paras. 62-63. Diverging from the chamber’s approach, the Grand Chamber analyzed the applicant’s complaint with regard to the positive aspect of Article 8, asking whether the State was required “to provide an effective and accessible procedure allowing the applicant to have her new gender legally recognised while remaining married.” Id. at para. 64. It distinguished this question from one already established by its jurisprudence, in which the Court has found a positive obligation under Article 8 “to recognize the change of gender undergone by post-operative transsexuals through, inter alia, the possibility to amend the data relating to their civil status, and the ensuing consequences.” Id. at para. 68 (internal citations omitted).
The Grand Chamber confirmed its understanding that States enjoy a margin of appreciation with respect to their positive obligations, and that the scope of this leeway depends on a number of factors. The margin of appreciation is narrower where an important aspect of an individual’s existence or identity is at stake. It is broader where there is little consensus within the Member States of the Council of Europe as to the importance of the interest at stake or the best means of protecting it. Id. para. 67. The margin is also broader if the State must balance competing public and private interests.
The Grand Chamber recognized that the case raised sensitive moral and ethical issues, and highlighted that there was no European consensus either on the issue of same-sex marriage, or on the issue of gender-recognition in the case of a pre-existing different-sex marriage. Id. para. 75. The Grand Chamber noted that only 10 of the 47 Member States allow same-sex marriage, 24 had “no clear legal framework for legal gender recognition,” six other States required that a person seeking a legal gender change be single or divorced or have their marriage annulled, and only three allowed “a married person to gain legal recognition of his or her acquired gender without having to end a pre-existing marriage.” Id. at paras. 31-32. As such, the Court concluded that Finland’s margin of appreciation must be wide, writing:
In the absence of a European consensus and taking into account that the case at stake undoubtedly raises sensitive moral or ethical issues, the Court considers that the margin of appreciation to be afforded to the respondent State must still be a wide one. This margin must in principle extend both to the State’s decision whether or not to enact legislation concerning legal recognition of the new gender of post-operative transsexuals and, having intervened, to the rules it lays down in order to achieve a balance between the competing public and private interests.
Id. at para. 75 (internal citations omitted).
Although the Grand Chamber framed its decision as identifying whether the Convention imposed a positive obligation on Finland, the remainder of the judgment examines the rationale behind Finland’s legislation and whether its application interfered with Ms. Hämäläinen’s private and family life. Specifically, the Grand Chamber analyzed whether Finland’s system of requiring the transformation of a marriage into a registered partnership prior to legal recognition of an acquired gender struck a fair balance between the competing interests at stake and was proportional to those interests. Id. para. 81.
First, the Court found that the consent requirement was designed to protect each spouse from the unilateral decisions of the other, and is “thus clearly an important safeguard which protects the spouse who is not seeking gender recognition.” Id. para. 82.
Second, while the Grand Chamber acknowledged the applicant’s argument that a marriage is different from a registered partnership, it found that the distinction was not relevant in this case. Because of her specific circumstances, the applicant would enjoy the same legal protections under a registered partnership as she would in a marriage. Id. para. 83.
Third, the Grand Chamber was convinced that the change was not akin to divorce, in that the applicant would not lose any other rights, such as a widower’s pension, if her marriage were transformed into a registered partnership, since the length of the partnership would be determined from the date it was contracted and not the date of the change in title. Id. para. 84.
Lastly, the Grand Chamber described the effects on the applicant’s family life, including her legal relationship with her daughter, as “minimal or non-existent” and found “that the conversion of the applicant’s marriage into a registered partnership would have no implications for her family life, as protected by Article 8 of the Convention.” Id. at para. 86.
In light of the limited nature of the law’s impact and the wide margin of appreciation in this area, the Grand Chamber held that the European Convention does not require Finland to recognize Ms. Hämäläinen’s gender identity while she remains married to a person of the same gender, in a country that has not authorized same-sex marriages. Thus, it found no violation of Article 8. Id. paras. 87-89.
Article 12: Right to Marry
Of its own motion, the chamber had considered the complaint under Article 12 (right to marry) of the Convention, and the Grand Chamber reviewed the decision. The Grand Chamber confirmed its understanding that Article 12 “secures the fundamental right of a man and woman to marry and to found a family” and does not require States to recognize same-sex marriage. Id. para. 96. The Grand Chamber found that, since the issue in this case concerned the consequences of the applicant’s change of gender for an existing marriage, it had already examined this question under Article 8 of the Convention and separate analysis was not necessary.
Article 14: Non-Discrimination
The applicant contended that Finland was discriminating against her by refusing to give her an identity number that corresponded to her actual gender. Pursuant to the European Court’s jurisprudence, a difference in treatment between persons in “relevantly similar situations” is discriminatory if there is no objective and reasonable justification. Id. para. 108. The difference in treatment must pursue a legitimate aim and have a reasonable relationship of proportionality between the means used and ends sought.
While acknowledging that “differences based on gender or sexual orientation require particularly serious reasons by way of justification,” the Grand Chamber again pointed to a wide margin of appreciation it implied applied to this issue. Id. at para. 109.
The Grand Chamber determined that Article 14 applied to the applicant’s complaint because it involved rights protected by articles 8 and 12 of the Convention. The applicant argued that compared to those who obtain legal gender recognition automatically at birth, trans persons were required to either transform their marriages into registered partnerships or divorce their spouses in order to get full legal recognition of their gender. The Grand Chamber tersely held that “the applicant’s situation and the situations of cissexuals are not sufficiently similar to be compared with each other.” For that reason, it found no violation of Article 14.
Concurrence
Judge Ziemele wrote a concurring opinion agreeing with the majority as to the result of its reasoning, but disagreeing with its approach. Judge Ziemele would have followed the negative obligation (interference) approach rather than asking whether the Convention imposed a positive obligation on the State. Unlike the dissenting judges, however, Judge Ziemele would have concluded that the State’s interest in protecting morals justified the interference with the applicant’s right to privacy. Hämäläinen v. Finland, Concurring Opinion of Judge Ziemele, para. 4.
Joint Dissent
Three judges issued a joint dissent arguing that Finland’s law violated the applicant’s rights under Article 8 of the Convention. The dissenting judges disagreed with three aspects of the majority’s reasoning. Hämäläinen v. Finland (joint dissenting opinion of Judges Sajó, Keller and Lemmens), para. 3. First, they argued that Finland’s refusal to grant the applicant a new identity number should have been examined as a possible violation of a negative obligation, “for it neither requires any major steps by the State authorities nor entails important social or economic implications.” Id. para. 4.
Second, they reasoned that the majority had placed too much emphasis on the absence of consensus among Council of Europe Member States in determining the scope of the State’s margin of appreciation. Another factor the majority should have considered, they argued, is whether a “particularly important facet of an individual’s existence or identity is at stake.” Id. para. 5 (quoting S.H. and Others v. Austria [GC], no. 57813/00, ECHR 2011, Judgment of 3 November 2011). The dissenting judges highlighted past criticism of the “consensus approach,” which argued that it allowed the “‘lowest common denominator’ among member States to prevail.” Id. para. 5. Instead, they argued, the Court could have asked whether there was “clear and uncontested evidence of a continuing international trend,” as it had done in the case of Goodwin v. United Kingdom. ECtHR, Goodwin v. United Kingdom [GC], no. 28957/95, ECHR 2002-VI, Judgment of 11 July 2002.
Third, the dissenting judges considered that the majority did not give sufficient weight to the deeply held religious beliefs of the applicant and her wife.
Applying Article 8 to the applicant’s situation, the dissenting judges asked whether the interference was prescribed by law and was necessary in a democratic society for the protection of one or more of the legitimate aims listed in Article 8(2) of the Convention. Hämäläinen v. Finland (joint dissenting opinion of Judges Sajó, Keller and Lemmens), para. 9. The protection of the rights and freedoms of others and the protection of morals were two aims the dissenting judges considered possible grounds for the Finnish restriction. However, the judges reasoned that the rights and freedoms of others “would be in no way affected” if the applicant and her wife remained married, and the aim of protecting morals must be “necessary in a democratic society.” Id. para. 11. In other words, the interference must be justified by a “pressing social need” and be “proportionate to the legitimate aim pursued.” Id. The judges considered that the institution of marriage would not be jeopardized were a small group of same-sex couples to be permitted to remain married. Id. para. 12. Thus, because there was no pressing social need, the interference with the applicant’s rights under Article 8 was not necessary in a democratic society, in the three judges’ opinion.
The dissenting judges also believed that the majority had overlooked another basis for discrimination under Article 14. They argued that the Grand Chamber should have considered whether the applicant was subjected to discriminatory treatment based on her sexuality. The applicant and her wife were treated differently from both cisgender heterosexual couples and homosexual couples. For this reason, the dissenting judges believed the applicant had been subjected to discrimination.
Reactions to the Decision
The Grand Chamber decision has received widespread attention from the media and civil society organizations. [Amnesty International; Pink News; EU Observer; ILGA Europe; Feministing]
Amnesty International, one of several third party interveners in the case, highlighted that the right of transgender people to privacy may be violated each time they have to produce documents mentioning a name or other gender-related information that “does not reflect their gender identity and expression.” They may also face discrimination, harassment, and violence by others. [Amnesty International] Although this fact is not highlighted in the Grand Chamber’s judgment, Amnesty emphasized that Ms. Hämäläinen “has already had to undergo a psychiatric assessment and sterilization as part of Finland’s legal requirements for gender recognition.”
Alecs Recher from Transgender Europe said, “It is a missed chance to bring the practice of the Court in line with the calls from many human rights specialists not to put trans people in a dilemma to choose between legal gender recognition and other human rights like the right to marry. Today, those European States still forcing trans persons to give up their most basic rights have been told that their approach is acceptable.” [Transgender Europe]
Ms. Hämäläinen responded to the decision with a public statement, saying:
I will stay married after this judgment. There is nothing on earth that will get us separated. We won’t terminate our marriage. We do not call it cis or trans or whatever. It is a religious marriage as I have proven to the court.
Related Cases Concerning Gender Identity
The European Court of Human Rights has decided a number of cases dealing with gender identity issues. For more information about the most prominent of these cases, see the Court’s factsheet.
The Court found for the first time that a State’s failure to recognize trans persons’ gender violated Article 8 in the case of B. v. France. ECtHR, B. v. France, no. 13343/87, Judgment of 25 March 1992. In the landmark case of Goodwin v. United Kingdom, the Court held that there had been a violation of Article 8 because the interest of the applicant in obtaining legal recognition of her gender outweighed any factors of public interest. ECtHR, Goodwin v. United Kingdom [GC], no. 28957/95, ECHR 2002-VI, Judgment of 11 July 2002.
In two separate cases, the Court rejected married trans individuals’ applications concerning gender identity recognition. In each of these cases, a spouse had undergone gender reassignment surgery and could not receive a Gender Recognition Certificate without legally terminating their marriages. The Court found the applications inadmissible because same-sex marriages were not permitted under the law of the United Kingdom and, it held, the Convention did not require the State to make allowances for a small number of marriages. ECtHR, Parry v. United Kingdom (dec.), no. 42971/05, 28 November 2006; ECtHR, R. and F. v. United Kingdom (dec.), no. 35748/05, 28 November 2006.
The case of P.V. v. Spain addressed parental contact rights following the separation of a male-to-female transsexual from her spouse. ECtHR, P.V. v. Spain, no. 35159/09, Judgment of 30 November 2010. The Court determined that there had been no violation of Article 8, in conjunction with Article 14, because the restriction on contact was not the result of discrimination based on the applicant’s transsexualism. Rather, the applicant’s temporary emotional instability was feared to negatively impact the child’s well-being, so the State developed a gradual arrangement for the applicant to have contact with the child.
European Court of Human Rights
The European Court of Human Rights is a full-time regional human rights court based in Strasbourg, France. The Court decides complaints submitted by individuals or States concerning alleged violations of the European Convention on Human Rights. The Court is organized into four different judicial formations: single judge, Committee, Chamber, and Grand Chamber. The Grand Chamber, which decided this case, generally hears cases only if they involve an important or novel question, either on a discretionary kind of appeal from a Chamber judgment or if relinquished by a Chamber due to the possibility of serious questions or potential inconsistencies in the interpretation of the Convention.
For more information about the European Court of Human Rights and other European human rights bodies, visit IJRC’s Online Resource Hub.