Strasbourg's European Court of Human Rights has held that requiring a change of marital status for a transsexual to be officially recognised as a woman did not breach her human rights. In the case of Hämäläinen v. Finland, the Court found that it was not disproportionate to require that she convert her marriage to a civil partnership before the State would recognise her gender as female. The Grand Chamber held by majority that there was no violation of the applicant’s right to respect for private or family life.
Finland does not currently allow marriage for same-sex couples, but it does offer registered partnerships for same-sex couples. In view of their rules on marriage, the Finnish government made full recognition of the applicant’s new gender conditional upon transformation of her marriage into a civil partnership. The applicant submitted that converting her marriage would mean the loss of rights and protections associated with marriage that were not available with a registered partnership. Under a registered partnership, future parental guardianship rights would change, the couple could not adopt and the applicant’s daughter would be placed in the same situation as a child born out of wedlock. It was not known whether the legal parent-child relationship would survive because that was not covered in the relevant Act.
The Court held that the protection offered by civil partnership was ‘almost identical’ to that of marriage and that it remained a genuine option which did not violate her rights under Article 8 of the European Convention on Human Rights. According to the court, the decision of the Finnish authorities was proportionate in striking a fair balance between the right to respect for her privacy by obtaining a new female identity number and the State’s interest in maintaining the traditional institution of marriage. Additionally, the Court referred to case law in stating that there was no obligation on States to provide for same-sex marriage under Article 12, and further, there could be no such obligation under the more general Article 8.
The Court held by a 14-3 majority that there was no violation of Article 8 (right to respect for private or family life) or Article 14 (non-discrimination) and that it was not necessary to examine the case under Article 12 (the right to marry).
Click here to read the judgment in full.