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European Court of Human Rights; Finland: Court Rules on Change of Gender Issue

(Aug. 1, 2014)

On July 16, 2014, the Grand Chamber of the European Court of Human Rights (ECHR) ruled that a transgender Finnish woman had not been deprived of her right to private life and family life as guaranteed by article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms when the Finnish authorities refused to recognize her legal status as a woman because she was still married to her wife. (Case of Hämäläinen v. Finland (App. No. 37359/09) (July 16, 2014), HUDOC; Convention for the Protection of Human Rights and Fundamental Freedoms (Nov. 4, 1950), art. 8, Council of Europe website.)


Finnish citizen Heli Maarit Hannele Hämäläinen, who was born a man and married a woman but later underwent gender transformation surgery to become a woman, wanted her personal identification number changed to reflect that she was now in fact a woman and not a man. To do so, she needed her wife’s consent in order to legally become a woman, since that procedure would automatically have transformed their marriage into a legal civil partnership.

The wife, citing her strong religious conviction that marriage lasts forever, refused to have the marriage turned into a civil union and therefore did not sign Hämäläinen’s application for change of legal gender. Hämäläinen was then left with two choices: to remain legally a man or to divorce her wife. Unwilling to do either, Hämäläinen turned to the courts, arguing that denying her a female personal identification number because she continued to be married to her wife constituted a violation of her human rights as guaranteed by article 8 of the Convention. (Id.)

Finnish Law

Finnish law only recognizes heterosexual marriages; it has special legislation on civil partnerships for homosexual couples. The two types of relationship are treated similarly, but differences exist, e.g. concerning the right to adopt. (Id.; Marriage Act [in Finnish], No. 234/1929 (as last amended by No. 23/2012, in force on July 7, 2012), FINLEX; Marriage Act [in English], No. 234/1929 (only available as last amended by Act 1226/2001, in force on Mar. 1, 2002), FINLEX; Act on Registered Partnerships, No. 950/2001(as last amended by Act 1229/2001) [in Finnish or English], FINLEX.)

Finland also has specific laws governing when and how a person can change his or her legal gender. (Act on Legal Recognition of the Gender of Transsexuals, No. 563/2002 (June 28, 2002) [in Finnish or English], FINLEX.)

Originally, a person had to be single to make a gender change. However, Finland now also allows a married person to change his or her gender identity if the spouse agrees to the change. (Act on Legal Recognition of the Gender of Transsexuals, 2 § para. 1.)

The Finnish government argued, and court agreed, that the spouse’s approval is warranted, because, as noted above, a change in the person’s legal gender also results in an automatic change in the couple’s legal relationship (id. at 2 § para. 2), transforming it either to or from a marriage and from or to a civil partnership, depending on whether the partners in the original relationship are of the same or opposite genders. (Hämäläinen v. Finland, supra ¶ 40, 82)

Procedural History of the Case

After making its way through the administrative court system of Finland, the case was heard by the ECHR in 2012. The ECHR found that the Finnish provision requiring spousal approval did not constitute a violation of the transgendered person’s human rights. The decision was then appealed to the Grand Chamber of the ECHR, which decided to hear the case earlier this year. The Grand Chamber is the court of final instance of the ECHR, with the ultimate authority on human right violations under the Convention. (The Grand Chamber, ECHR website (last visited July 28, 2014).)

The Grand Chamber Decision

The Grand Chamber formulated the issue as

whether respect for the applicant’s private and family life entails a positive obligation on the State to provide an effective and accessible procedure allowing the applicant to have her new gender legally recognised while remaining married. The Grand Chamber therefore considers it more appropriate to analyse the applicant’s complaint with regard to the positive aspect of Article 8 of the Convention. (Hämäläinen v. Finland, supra, ¶ 64.)

In its 14 to 3 decision, the Grand Chamber found that because the issue concerned a positive right, Finland, as a Contracting State to the Convention, had some autonomy to act (a “margin of appreciation”) in regard to legal recognition of a citizen’s new gender. (Id. ¶ 75.) Resting on precedent, the Grand Chamber reiterated that there is no obligation on the part of a Contracting State to recognize same-sex marriage or otherwise provide legal solutions for the issue at hand. (Id. ¶ 71.)

The court explained that, because there is still little consensus within Europe as to what are the legal rights of transsexuals seeking to change their gender, Finland must be given a greater margin of appreciation. According to the court, “the majority of the member States do not have any kind of legislation on gender recognition in place.” (Id. ¶74.)

The Grand Chamber also pointed out that changing the marriage into a registered civil partnership would not alter the transgendered woman’s other family rights, such as the legal paternity or custody of the child she had fathered and raised while still a man. (Id. ¶ 86.) The court further noted that because the new civil union would be recognized as starting on the date the original marriage started, the transformation of the marriage was in fact not, as argued by the applicant, the equivalent of a “forced” divorce. (Id. ¶¶ 82 & 84.)

The court went on to conclude that Hämäläinen “has a genuine possibility to change [the] state of affairs” and that “the current Finnish system as a whole has not been shown to be disproportionate in its effects on the applicant and that a fair balance has been struck between the competing interests in the present case.” (Id. ¶ 87.) Thus there was no violation of article 8. (Id. ¶ 88.)

The Dissent

Three judges wrote a joint dissent in which they claimed that the majority had approached the case in the wrong way because the issue of the state’s refusal to grant a new identity card to Hämäläinen to reflect her new gender should have been dealt with “as a potential breach of a negative obligation” and not as a breach of a positive obligation. As a result, the court credited the Finnish legislature with a greater margin of appreciation than they should have had, in the dissenting judges’ view. (Id., Joint Dissenting Opinion of Judges Sajó, Keller And Lemmens, item 4.) The dissent argued that in any case the margin of appreciation only ext
ended to the aims recognized in article 8, section 2, of the Convention, i.e. for the protection of national security, public safety, or economic well-being; to prevent disorder or crime; or to protect health rights, freedoms of others, or morals. (Id. items 9-10.) None of these criteria justified the Government’s action in this case. (Id. items 11 & 14.)

According to the judges, the purpose of protecting the institution of marriage was not justified by the above mentioned aims set forth in article 8, section 2. They especially noted that the small number of transsexuals who would remain married to their original spouses did not sufficiently threaten the institution of marriage, considering that the couple would continue to live together as married and would be perceived by the outside world to be in a same-sex marriage. (Id. item 13.)

Views of the Decision

Commenting on the effects of the case, Hämäläinen stated that she will continue to be affected in her daily life by the ruling, even in such matters as not being able to travel abroad because her passport indicates that she is still a man although physically she is now a woman. (Lasse Kerkelä & Aleksi Teivainen, ECHR: Finland Not Guilty of Discrimination Against Transgender Woman, HELSINKI TIMES (July 18, 2014).)

Amnesty International, which was granted third party rights in the case, has declared the decision a blow to LGBT rights. (Finland: European Court Ruling a Blow to Transgender Rights, Amnesty International website (July 16, 2014).)