The European Court of Human Rights has firmly restated its view that Council of Europe member states must give legal recognition to transgender persons.
In a judgment given in the case of H v. Finland on 13th November, the Court referred to a number of previous judgments it had given concerning transgender persons and said:
“While affording a certain margin of appreciation to States in this field, the Court has nevertheless held that that States are required, by their positive obligations under Article 8, to implement the recognition of the gender change in post-operative transgender persons through, inter alia, amendments to their civil-status data, with its ensuing consequences”.
The judgment added that a transgender person “may claim to be a victim of a breach of his or her right to respect for private life contrary to Article 8 of the Convention due to the lack of legal recognition of his or her change of gender”. However, the Court’s judgment did not back the complaint by the applicant “H”, a married transgender woman, that a Finnish law requiring her to divorce or enter into a civil partnership as a condition of legal recognition, was in breach of her rights.
“H” had married in her previous male gender and the couple had had a child. “ H” had been supported in transitioning to her female gender by her wife and they wished to remain married. Under Finnish law, and if they both agreed, “H” could be legally recognised as female and their marriage would be automatically converted into a civil partnership. But they did not agree to this and the only other way for “H” to get legal recognition was to get a divorce.
The Court held that this was an interference with H’s rights but that it fell within the “margin of appreciation”, or leeway, allowed to States in the area of marriage law. Unlike its Scandinavian neighbours, Finland does not allow same-sex marriage, though it is considering it at the moment.The Court was clearly influenced in its decision by the fact that the H’s marriage would be converted into a civil partnership automatically if she and her wife consented to this and their relationship would not be broken up.
This judgment should serve as a reminder to the Irish Government that the Court of Human Rights will not tolerate a failure to provide official recognition to transgender persons. It is also unlikely that the Court would approve the proposal from the Government’s Gender Recognition Advisory Group that married transpeople here would have to get a divorce as a condition of legal recognition, given that obtaining a divorce in this jurisdiction requires four years separation and an irretrievable breakdown of the marriage.
The judgment of the European Court of Huamn Rights can be found here.