The ECtHR and transsexual “same-sex” marriage

Does a signatory to the ECHR have the right under the Convention to refuse to change the official documentation of a transsexual? The issue came up very recently in H v Finland 37359/09 HEJUD [2012] ECHR 1916 (13 November 2012).

H was born a male in 1963 and married in 1996. In 2002 the couple had a child; but H was suffering from gender dysphoria and became increasingly unhappy until in 2006 she was diagnosed as transgender. From then on she lived as a woman and changed her first names and renewed her passport and driver’s licence – but she could not have her identity number changed and her ID number and passport continued to show her as chromosomally male.

In 2007 she asked the local Register Office to confirm her as being female and to give her a female ID number; but the Register Office refused on the grounds that ss 1 and 2 of the Gender Confirmation of Transsexual Individuals Act 2002 required the consent of her spouse – and because her spouse did not consent to the transformation of their marriage into a civil partnership H’s new gender could not be recorded in the population register. H appealed to the Helsinki Administrative Court complaining, inter alia, that because of her wife’s refusal of consent she could not be registered as a female. Both H and her wife wished to remain married: a divorce would be against their religious convictions and they felt that a civil partnership did not provide the same security as a marriage and would mean that their child would be put into a different situation vis-à-vis children born within wedlock. But her appeal was rejected, as was a further appeal to the Supreme Administrative Court in 2009 after she had undergone gender reassignment surgery.

Before the Fourth Section H complained that the fact that full recognition of her new gender was conditional on the transformation of her marriage into a civil partnership violated her rights under Articles 8 (private and family life), 12 (marriage) and 14 (discrimination) ECHR.

The Court noted that H and her spouse were lawfully married under domestic law and that they wished to remain married; but in domestic law same-sex marriages were not permitted. H could obtain a new ID number as a woman only if her spouse consented to their marriage being turned into a civil partnership: absent such consent, H had a choice between remaining married and tolerating the inconvenience caused by her male ID number or divorcing her spouse (para 47).

The crux of the problem was that there were two competing rights: H’s right to respect for her private life and the state’s interest in maintaining intact the traditional institution of marriage. Giving H a female ID number while allowing her to remain married would have implied the existence of an officially-recognised same-sex marriage between H and her spouse – which the current domestic law did not allow (para 48).

The Court’s view was that neither Article 8 nor Article 12 imposed any obligation on states parties to grant same-sex couples access to marriage. In Finland the rights of same-sex couples were protected by the possibility of registering a civil partnership (para 49): H could turn her marriage into a civil partnership with the consent of her spouse – and if no such consent was obtained she had the option of divorce. The Court did not regard it as disproportionate to require the consent of the spouse to a change of registered sex because the spouse’s rights were also at stake. Nor was it disproportionate that H could only get her new ID number by turning her marriage into a civil partnership because civil partnership provided legal protection for same-sex couples which was almost identical to that of marriage (para 49). Nor was there any suggestion that the couple’s child would be adversely affected by such a move (para 51).

The Court concluded that the domestic law struck a fair balance between the competing interests at issue, that the interference with H’s right to respect for her private life was not disproportionate – and that there had been no violation of Article 8. Nor did the facts disclose any issue under Article 12: H had been legally married since 1996 and the issue was the consequences for her existing marriage of her change of gender – which had already been examined under Article 8 (paras 52 & 53).

H had complained under Article 14 that, by refusing to give her a female ID number, the state was discriminating against her by making her reveal that she was transgendered every time she had to explain why her ID number was male when she was female. But the Court took the view that she was comparing her situation to that of any other person, including non-transgender people and transgender people who were unmarried – and those situations were not sufficiently similar to hers to make them comparable.

The root of H’s problem was that Finnish law did not allow same-sex marriages (para 65) – and Articles 8 and 12 did not oblige states parties to implement same-sex marriage (para 66). The Court held that there had been no violation of Article 8 or of Article 14 taken in conjunction with Article 8. There was no need separately to examine the case under Article 12.

Comment: Broadly-speaking, the Court followed the line that it had taken most recently in Schalk and Kopf v Austria 30141/04 [2010] ECHR 218 (16 February 2010): that Article 12 enshrines the traditional concept of marriage as being between a man and a woman and that though some states parties have extended marriage to same-sex partners, that reflects their own vision of the role of marriage in their societies and does not flow from an interpretation of the fundamental right to marry as laid down in the Convention in 1950 (para 38). Somewhat paradoxically, however, it also said that

“… the Court has … held that states are required, by their positive obligation 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 (para 37).

But not in the case of Ms H.

The judgment seemed to turn on whether or not obliging the Finnish Government fully to recognise Ms H’s acquired gender would cut across its margin of appreciation on the provision of same-sex marriage. Possibly the Court made a false apposition when it asserted that there were two competing rights: H’s right to respect for her private life and the state’s interest in maintaining intact the traditional institution of marriage. That rather begs the (fairly subtle) question as to whether or not an implicit recognition of a de facto same-sex marriage in these very particular circumstances would, in fact, threaten “the traditional institution of marriage”. One might have thought that the facts in H v Finland were so very unusual that “the traditional institution of marriage” would probably be able to survive the shock.

It is just over ten years since the judgment in Christine Goodwin v United Kingdom 28957/95 [2002] ECHR 588 (11 July 2002), in which the Grand Chamber found as follows:

“… the respondent Government can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention. Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender reassignment, [the Court] reaches the conclusion that the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant” (para 93).

But the Fourth Section, having looked at Goodwin, appeared to back away from its full implications. How the situation will develop remains to be seen, particularly as the issue is set to come up all over again in Cassar v Malta 36982/11 [2011] ECHR, currently awaiting a hearing.

Finally, in spite of the throwaway remark at para 11 that “[a] divorce would be against their religious convictions” Article 9 gets no mention in the judgment at all. Perhaps H’s counsel simply thought that it was not worth running the argument.

Update: In the event, Cassar v Malta came to nothing because in April 2013 the Government of Malta decided to change the law to accommodate Ms Cassar’s situation: see Jubilation greets transsexual marriage announcement.

2 thoughts on “The ECtHR and transsexual “same-sex” marriage

  1. Pingback: Religion and Law roundup: 25th November | Law & Religion UK

  2. Pingback: Transsexuals and marriage: Hämäläinen v Finland | Law & Religion UK

Leave a Reply

Your email address will not be published.