Heli Hämäläinen, a Finnish national born in 1963, was born a male and married in 1996. She and her wife had a child in 2002 and in 2009 Ms Hämäläinen underwent male-to-female gender reassignment surgery. Although she had changed her first names in June 2006 she could not have her identity number changed to indicate her female gender in her official documents unless her wife consented to the marriage being turned into a civil partnership (which she refused to do) or unless the couple divorced. The couple, who are Evangelical Lutherans, preferred to remain married because divorce would be against their religious convictions and they felt that a civil partnership did not provide them and their child the same degree of security as marriage. Ms Hämäläinen’s request to be registered as female at the local registry office was therefore refused.
Her appeal to the domestic courts against the refusal to register her as a female was rejected on the grounds that the law relating to confirmation of the gender of transsexuals was not intended to change the fact that only a man and a woman could marry under Finnish law. In 2010 the Supreme Administrative Court refused her further appeal and in November 2012 Fourth Section ECtHR held unanimously that there had been no violation of Article 8 ECHR (private and family life) in her case: see H v Finland  ECHR 1916, about which we posted at the time. She appealed to the Grand Chamber.
She lost: see Hämäläinen v Finland  ECHR 787.
The Grand Chamber judgment
The Grand Chamber held by fourteen votes to three that there had been no violation of Article 8, that there was no need to examine the complaint under Article 12 (right to marry) and that there had been no violation of Article 14 (discrimination) taken in conjunction with Articles 8 and 12.
The majority judgment was based on the underlying the principle that
“… Article 12 of the Convention is a lex specialis for the right to marry. It secures the fundamental right of a man and woman to marry and to found a family. Article 12 expressly provides for regulation of marriage by national law. It enshrines the traditional concept of marriage as being between a man and a woman … While it is true that some Contracting States have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples” [para 96].
On the principal issue – whether or not there had been a violation of Article 8 – the GC noted that the applicant was not advocating same-sex marriage in general but merely wanted to preserve her own marriage: however,
“… the applicant’s claim, if accepted, would in practice lead to a situation in which two persons of the same sex could be married to each other … [N]o such right currently exists in Finland. Therefore the Court must first examine whether the recognition of such a right is required in the circumstances by Article 8 of the Convention” [para 70].
“… Article 8 of the Convention cannot be interpreted as imposing an obligation on Contracting States to grant same-sex couples access to marriage … the regulation of the effects of a change of gender in the context of marriage falls to a large extent, though not entirely, within the margin of appreciation of the Contracting State … Furthermore, the Convention does not require that any further special arrangements be put in place for situations such as the present one” [para 71].
The Court cited Parry v United Kingdom  ECHR 1157 to the effect that that, though English law did not provide same-sex marriage,
“… the applicants could continue their relationship in all its essentials and could also give it a legal status akin, if not identical, to marriage, through a civil partnership which carried with it almost all the same legal rights and obligations. The Court thus regarded civil partnership as an adequate option” [para 71].
Current practice among states parties varied; and there was therefore no European consensus either on allowing same-sex marriages or on how to deal with gender recognition in the case of a preexisting marriage [para 74]. Absent such a consensus the margin of appreciation for states parties was wide, extending both to the decision whether or not to enact legislation on legal recognition of the new gender of post-operative transsexuals and to the rules laid down to achieve a balance between the competing public and private interests involved [para 75].
Finnish law provided Ms Hämäläinen with three options:
- maintaining the status quo, remaining married and tolerating the inconvenience caused by the male identity number [para 76];
- convert the marriage into a registered partnership with the consent of her wife [para 77]; or
- divorce, which contrary to Ms Hämäläinen’s assertions was a matter for her own discretion [para 78].
Contrary to the majority of states parties, Finland had a mechanism for legal recognition of change of gender [para 80]; however, the Finnish legislature had opted to reserve marriage to heterosexual couples with no exceptions [para 81]. The spousal consent requirement (which Ms Hämäläinen saw as requiring “forced divorce”) was designed to protect each spouse from the effects of a unilateral decision by the other and was a safeguard for the spouse who was not seeking gender-recognition [para 82]. The differences between a marriage and a registered partnership were not such as to involve an essential change in the applicant’s legal situation: Ms Hämäläinen would “be able to continue enjoying in essence, and in practice, the same legal protection under a registered partnership as afforded by marriage” [para 83] nor would she and her wife lose any other rights if their marriage were converted into a registered partnership [para 84]. As to the effect on Ms Hämäläinen’s family life, it would be minimal [paras 85 & 86].
“While it is regrettable that the applicant faces daily situations in which the incorrect identity number creates inconvenience for her, the Court considers that the applicant has a genuine possibility of changing that state of affairs: her marriage can be converted at any time, ex lege, into a registered partnership with the consent of her spouse. If no such consent is obtained, the possibility of divorce, as in any marriage, is always open to her. In the Court’s view, it is not disproportionate to require, as a precondition to legal recognition of an acquired gender, that the applicant’s marriage be converted into a registered partnership as that is a genuine option which provides legal protection for same-sex couples that is almost identical to that of marriage…” [para 87].
The system was therefore not disproportionate and there had been no violation of Article 8.
The dissenting opinion
Sajó, Keller and Lemmens JJ started from the position that gender identity was a particularly important facet of individual existence, noting the GC’s dictum at para 91 in Christine Goodwin v United Kingdom  ECHR 58 that “society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost”. The majority had based its reasoning on three assumptions that the three dissenters did not share: that the complaint had to be analysed from the perspective of a positive obligation, that there was no consensus among states parties on issues concerning transgender persons and that Ms Hämäläinen had a real choice between maintaining her marriage and obtaining a female identity number.
As to the first, the refusal to give Ms Hämäläinen a new identity card reflecting her acquired gender should be examined as a potential breach of a negative obligation, “for it neither requires any major steps by the State authorities nor entails important social or economic implications” [para 4]. As to the second, the argument that there was no consensus on issues concerning transgender persons was incorrect as contrary to the Court’s previous case-law:
“… the existence of a consensus is not the only factor that influences the width of the State’s margin of appreciation: that same margin is restricted where ‘a particularly important facet of an individual’s existence or identity is at stake’ (see SH & Ors v Austria [GC], no. 57813/00, § 94, ECHR 2011). As a general rule, where a particularly important aspect of a Convention right is concerned, the Court should … examine individual cases with strict scrutiny and, if there has been an interference incompatible with Convention standards, rule accordingly – even if many Contracting States are potentially concerned. This rule applies to the present case: a particularly important facet of the applicant’s identity is at stake here, hence the narrower margin of appreciation afforded to the State… [para 5].
As to the third, it was “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” [para 6]. Furthermore, the majority had taken insufficient account of the fact that Ms Hämäläinen and her spouse were deeply religious and believed that their marriage would last for life – and that Ms Hämäläinen’s spouse continued to identify as heterosexual:
“Given their religious background, the applicant and her spouse cannot simply change their marriage into a same-sex partnership, as this would contradict their religious beliefs. In this regard, we believe that the majority did not take important factual information sufficiently into account” [para 6].
In their view, the Court should have examined the complaint under Article 8 with regard to the particular importance of gender identity to an individual and the narrow margin of appreciation that states parties enjoyed in that area and to the strong religious convictions of the applicant and her spouse.
Sajó, Keller and Lemmens JJ concluded that the rights and freedoms of others would not be affected if the couple were permitted to remain married despite Ms Hämäläinen’s legal change of gender, nor would their continued marital relationship have detrimental effects on the right of others to marry or on existing marriages [para 10]. Nor did the protection of morals provide sufficient justification for restricting Ms Hämäläinen’s rights. Therefore, the interference was not “necessary in a democratic society” [para 14].
The reference by the minority to the couple’s strong religious convictions is interesting, given that there was no argument at either hearing as to a possible breach of Article 9 – the more so because in her own blog post on the case Ms Hämäläinen declares that “This case is not about same-sex marriages. It is about the defence of faith”.
But that aside, the majority seems to have preferred the sledgehammer to the nutcracker. It seems to me that the minority’s conclusion that the restriction is not “necessary in a democratic society” is very difficult to refute. After all, we are talking about a very small number of people in a very unusual situation; and even if one accepts the majority’s contention (as we must) that “Article 8 of the Convention cannot be interpreted as imposing an obligation on Contracting States to grant same-sex couples access to marriage”, the impact of the current Finnish legislation on Ms Hämäläinen’s right to full recognition of her acquired gender receives insufficient weight in the majority opinion. And in the final analysis, what harm would have been done to society at large by giving Ms Hämäläinen a female identity number?