In the landmark 2002 decision, Goodwin v United Kingdom, the European Court of Human Rights (“ECtHR”), citing an “unmistakable trend” among Council of Europe member states, established a general right for post-operative transgender persons (termed “transsexuals” in the judgment) to access legal gender recognition. In the absence of “concrete or substantial hardship or detriment to the public interest”, the UK’s failure to provide Ms. Goodwin with an amended birth certificate (which had also prevented her from entering into a valid marriage) was held to violate arts. 8 and 12 of the European Convention on Human Rights (“ECHR”).
While Goodwin acknowledges a general right to recognition, the European judges were careful not to set down any particular procedures or rules which a state must follow in granting such recognition. The result has been significant variation in gender recognition regimes across Europe, ranging from Denmark’s recent move towards a self-identification model to the requirement for invasive and irreversible surgical intervention, which is still enforced in certain European countries, such as France. While many of these “conditions of recognition” have been subject to legal challenge before national courts, there have been comparatively few cases of this kind before the Strasbourg court.
On July 16, 2014, the Grand Chamber issued an important decision concerning one of the most common conditions of recognition – the requirement that an individual be single or divorced. In Hämäläinen v Finland, the applicant was a married transgender woman who sought to obtain legal recognition of her preferred gender in Finland. The Finnish authorities refused her request because the applicant was, contrary to national law, still married. The applicant and her wife, on the basis of their religious beliefs, were unwilling to automatically convert their marriage into a civil partnership, as provided for under Finnish law. The applicant argued that the conversion requirement set down in national law was a violation of her rights under arts. 8, 12 and 14 ECHR.
The Grand Chamber, affirming an earlier Fourth Section decision, rejected the applicant’s submissions. In its judgment, the majority noted that, although art. 8 ECHR does apply to a married post-operative transgender person in the applicant’s position, the current Finnish law does not violate her right to private and family life. While the applicant had not specifically argued her case through the lens of same-gender marriage, a positive decision for the applicant would have resulted in two persons of the same legal gender inhabiting a marital relationship. The applicant’s case could not, therefore, be divorced from the Court’s established jurisprudence on same-gender marriage, but rather had to be considered in the light of that case law. The majority, reaffirming earlier pronouncements in Schalk and Kopf v Austria, stated that art. 12 ECHR does not protect a right for two persons of the same gender to marry. Owing to the absence of a European-wide consensus, member states retain a wide margin of appreciation in regulating access to marriage and cannot be forced to accept same-gender marriage under the guise of legal gender recognition.
The Court concluded that there were a number of acceptable alternatives for the applicant and her wife, most particularly the possibility of automatically converting their marriage into a registered partnership. Under Finnish law, registered partners enjoy substantially the same rights as married couples. Similarly, the operation of the registered partnership would in no way effect the applicant’s legal relationship with her 12-year-old daughter.
There are numerous observations which can be made about the Hämäläinen decision (certainly many more than this short posting will allow). The dissenting minority (Judges Sajó, Keller and Lemmens) address a number of the most relevant critiques in their excellently-reasoned opinion. One such critique is that the majority should have given greater attention to the growing body of case law, epitomised by a 2008 judgment from the German Constitutional Court, which emphasises the unfairness of requiring individuals to choose between two fundamental rights – self-identification and marriage. Another critique is that the majority judgment has little regard for the extreme emotional hardship which marriage dissolution places upon many transgender persons, particularly when those persons, like Ms. Hämäläinen, have been lovingly supported through the difficult transition process by their spouse. Upon reflection, there may be much to support the minority’s conclusion that such marriage dissolution is not necessary or proportionate in a democratic society.