European Human Rights Court Rejects Discrimination Claim by Finnish Transgender Woman

A Grand Chamber (17 judges) of the European Court of Human Rights has rejected a claim by a transgender woman from Finland that her European Convention rights were violated when the Finnish government would not recognize her correct gender unless her wife agreed to have their marriage converted into a registered partnership.  The July 16  ruling in Hamalainen v. Finland drew a strong dissenting opinion from three judges on the court.

Ms. Hamalainen, a resident of Helsinki, was identified male at birth but has always felt that she was female.  She struggled to cope with her male gender role, but in 1996, when she was 33, she married a woman and they had a child in 2002. Her unease inhabiting a male role worsened, and she sought medical help in 2005.  In April 2006 she was diagnosed as transgender and she has lived as a woman since then, undergoing transition surgery in September 2009.  After her 2006 diagnosis, she changed her name and renewed her passport and driver’s license, but her attempt to get her Finnish identity number changed has been unsuccessful.  As of now, both her passport and her identity number mark her as male.  This has generated problems in everyday life, as her official identification documents conflict with her appearance and gender role.

The reason why the government will not officially identify her as female is because she remains married to her wife.  Finnish marriage law restricts marriage to different-sex couples.  Finland did adopt a registered partnership law for same-sex couples, which carries almost all the rights of marriage under national law.  Finland also has a transgender recognition law, but it provides that a married person’s gender transition will not be officially recognized unless their spouse consents to their marriage being converted to a registered partnership.  To do otherwise, contends the Finnish government, would violate the marriage law and undermine the nation’s policy of preserving the traditional definition of marriage.  There are proposals pending in the Parliament to adopt a marriage equality law, but so far they have not succeeded.  Ms. Hamalainen’s other alternative, if she wants official recognition of her female identity, would be to divorce her wife.

The complication here is that neither Ms. Hamalainen nor her wife want a divorce.  They also don’t want a registered partnership, as this would mark the wife socially as a lesbian, which she decidedly is not.  They are deeply religious people who consider marriage a sacred bond, reject the idea of divorce, and believe that they should stay married and continue to raise their child together.  Ms. Hamalainen expressed concern that her parental rights might be compromised if she is not married to her child’s mother.

Ms. Hamalainen argued that Finland’s refusal to accommodate her by recognizing her female sex but leaving her marriage intact violates three articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms:  Article 8, which protects privacy and respect for private life; Article 12, which protects the right to marry; and Article 14, which forbids discrimination because of sex and has been interpreted also to prohibit discrimination because of sexual orientation and gender identity.  In 2012 a smaller panel of judges rejected her claim, and she requested that the case go to a Grand Chamber, which held a hearing on the case in October 2013.

The court agreed that all three of the provisions of the Convention potentially applied in this case, but ultimately determined that Finland’s position does not violate the Convention.  Ms. Hamalainen’s claims ran aground mainly on the Court’s preference to look to consensus or strongly emerging trends among the nations that are signatories to the Convention in deciding on the substance of protected rights.  Taking the position that what she is seeking is to have a recognized same-sex marriage, the court noted that ten member states of the Council of Europe permit same-sex marriages: Belgium, Denmark, France, Iceland, Norway, Portugal, Spain, Sweden, the Netherlands and the United Kingdom (but only in England and Wales as of now, as the Scottish marriage equality law has not yet come into effect).  In those countries, of course, the gender of marital partners is no longer an issue.  On the other hand, 24 member states “have no clear legal framework for legal gender recognition or no legal provisions which specifically deal with the status of married persons who have undergone gender reassignment.”  Six countries that don’t at present allow same-sex marriages do have relevant legislation: Hungary, Italy, Republic of Ireland, Malta, Turkey and Ukraine.  “In these States the legislation specifically requires that a person be single or divorced, or there are general provisions in the civil codes or family-law provisions stating that after a change of sex any existing marriage is declared null and void or dissolved.”  As of now, only three countries that are parties to the Convention would accommodate this kind of case: Austria, Germany, and Switzerland.

Thus, a European consensus in favor of Hamalainen’s claim doesn’t exist.  Furthermore, in recent cases the Court has said that Articles 8 and 12 do not require member states to allow same-sex couples to marry, or thus to render gender irrelevant to marriage, although the  Court has found violations of the Covenant when states refuse to provide an alternative legal status for same-sex couples that provides substantially all the rights of marriage.  Within the Council of Europe, civil unions or the like are the minimally acceptable requirement to conform to the obligation for respect for private life. (Italy is the major outlier here in Western Europe, and the government is moving towards some kind of civil union law.)  Since officially recognizing Ms. Hamalainen as female while married to a woman would be, effectively, to allow a same sex marriage, the Court refused to rule in her favor, having found that under existing European human rights law, Finland has a right to reserve marriage for different-sex couples.

The Court’s jurisprudence focuses on the “margin of appreciation” that member states have in terms of complying with established human rights norms.  In the past, the Court has said the margin of appreciation is narrow in sexual orientation or gender identity discrimination cases, which means that states must have good policy reasons for maintaining policies that discriminate on these grounds.  This reflects the emerging consensus among member states that such discrimination improperly intrudes on the autonomy of the individual.  However, as there is no European consensus on marital rights of transgender individuals, “the Court considers that the margin of appreciation to be afforded to the respondent State must still be a wide one.”

The Court found that since Finland has extended to same-sex registered partnerships almost all the legal rights of marriage, it had struck a “fair balance” between the individual’s claims in this case and the nation’s interest in preserving its traditional definition of marriage.  The Court rejected Hamalainen’s contention that Finland was effectively forcing her to divorce her wife if she wanted the state to recognize her correct sex, in light of the registered partnership alternative.  As long as her wife withheld consent from this alternative, however, it appears that Hamalainen must seek a divorce if she wants to have her gender properly recorded in her passport and indicated in her national identity number.

The Court made short work of the argument that Finland’s policy violates the right to marry, pointing out that Hamalainen is married already and was not denied that right.  The Court rejected her “equal protection” claim, finding the lack of comparators necessary to analyze a discrimination claim.

The dissenters rejected the Court’s conceptualization of the case, particularly arguing against the idea that the lack of a consensus among European states about how to treat this issue meant that Finland should have a “wide margin of appreciation” in deciding how to deal with it.  While conceding that the lack of a consensus was one factor to consider, the dissenters argued, “that same margin is restricted where a particularly important facet of an individual’s existence or identity is at stake.”  The dissenters argued that the Court “has some discretion regarding its acknowledgement of trends,” and in the past has not let the absence of a consensus get in the way of a ruling where an individual has a strong claim.  The dissenters note, for example, a landmark ruling involving transgender rights in England, the Christine Goodwin case, where the court held that “the lack of such a common approach among forty-three Contracting States with widely diverse legal systems and traditions is hardly surprising.  The Court accordingly attaches less importance to the lack of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend in favor not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals.”  This decision led to a decisive change in English law, prompting the Parliament to undertake a study and enact a gender recognition statute that has become a model for other British Commonwealth countries. England’s recent enactment of marriage equality, of course, has solved the particular problem that Hamalainen faces in Finland.

The dissenters rejected the Court’s conclusion that Ms. Hamalainan had a “real choice between maintaining her marriage and obtaining a female identity number” just because the state would treat her marriage as a registered partnership if her wife consented.  “We believe that it is highly problematic to pit two human rights — in this case, the right to recognition of one’s gender identity and the right to maintain one’s civil status – against each other.”  The dissenters were particularly critical of the Court’s failure to take account of the religious objections to divorce by Hamalainan and her wife, and to her wife’s continued identification as heterosexual, which would be compromised in society’s eyes by considering her a party to a registered partnership, a status in Finland reserved for same-sex couples who are perceived as gay or lesbian.  “In this regard,” wrote the dissenters, “we believe that the majority did not take important factual information sufficiently into account.” The dissenters also suggested that requiring Finland to recognize the continued marriage status of gender-transitioning spouses would hardly amount to a large enough number of cases to endanger the country’s general policy against same-sex marriages.  It would not destroy public order or undermine the security of the state.

The dissenting judges are from Hungary (Andras Sajo), Switzerland (Helen Keller), and Belgium (Paul Lemens).

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