Divorce Requirement is Interference in Private Life says European Court for Human Rights
TGEU, Europe
Divorce Requirement is Interference in Private Life says European
Court for Human Rights - TGEU Media Release
Tue, 11/13/2012 - 13:23 — Richard
Divorce Requirement is interference in Private Life says European
Court for Human Rights
TGEU Media Release
13th November 2012
Divorce Requirement in Gender Recognition is interference in Private
Life says European Court for Human Rights
The European Court for Human Rights today issued a verdict in H v
Finland (Application no. 37359/09) acknowledging that a required
forced divorce constitutes interference into the private life.
However, the court ultimately rejected the applicant’s claim that her
human rights were violated. The applicant Ms H did not want to accept
that her marriage was turned into a registered partnership, as
prescribed under Finnish law.
The verdict
The court found Ms H’s right to private and family life (Art 8), right
to marriage (Art 12) and the right to non-discrimination (Art 14)
under the European Convention were not violated by the Finnish law on
legal gender recognition. Her situation could not be compared to other
non-married transgender persons seeking recognition of their gender.
While the court confirmed that her private life was interfered, it
also accepted that the protection of “health and morals” and the
“rights and freedoms” of others, as argued by the government, was
legitimate.
The case
In 2006 Ms H changed her first names from male to female. Her request
to the Finnish courts to also officially recognize her gender as
female was refused as she and her wife were unwilling to get divorced
and have their marriage automatically turned into a registered
partnership. Being single is a pre-requisite for legal gender
recognition in Finland. Ms H complained to the European Court for
Human Rights claiming that this requirement would violate her right to
private and family life as well as her right to marriage. Both rights
are protected under the European Convention on Human Rights.
Impact
A verdict could be of relevance to another four European countrieswith
similar set-ups. Czech Republic, France, Hungary, UKand some cantons
in Switzerland have registered partnerships while requiring couples to
divorce for an official recognition of a trans person’s gender.
However, a French court of Appeal in Rennes recently declared that a
trans person could not be denied recognition of her gender because of
being married.
Forced Divorce in Europe
A total of 24 countries in Europe still requires trans people to be
single to or divorce before their gender is legally recognized.
Forced divorce means hardship for many trans people’s families and
children. Their protection and gained rights are lost. Many couples do
not prefer to turn their previous marriage into a registered
partnership as they fear for loosing previously ensured rights for
themselves and their relatives.
On top of the emotional burden for the family a divorce procedure is
often lengthy and delays the access to new ID documents. Without
proper papers trans people are face difficulties in accessing the job
market and everyday transactions. Their families and particularly
children face legal uncertainty on their rights during and after the
legal separation.
Apart from being single, many countries in Europe require additionally
forced sterilization and invasive medical surgery; all countries
necessitate a mental health diagnosis before granting full legal
recognition.
Comments
"We all share the immense disappointment the applicant and her family
must feel now. Families like Ms H’s deserve protection as any other
family. It is not right that her wife and child have to suffer from
society’s narrow view on marriage.” comments Arja Voipio, member of
the TGEU Executive Board: “On the one side we see here a legalistic
view trying to uphold an artificially simple model of marriage and
partnership. On the other side, we see individuals with their families
seeking protection of their basic human rights.”
“It remains incomprehensible how “health and morals” and “rights and
freedoms” of others” could be threatened by the intact family life of
Ms H.” says Richard Köhler, TGEU Policy Officer. “However, the court
acknowledged that private and family life was affected. It also
reiterated that member states have only narrow leeway when setting
conditions for recognizing a person’s gender identity. We remain
optimistic that excessive conditions trans people are still exposed to
will eventually be banned in Europe.
###
About TGEU
TGEU is Human Rights Organization working for equality and inclusion
of trans people in Europe. www.tgeu.org
TGEU Policy & Capacity Officer Richard Köhler is available for further
information and comment at: Richard[at]tgeu.org
Read more:
Verdict H. v. FINLAND (Application no. 37359/09) of the European Court
of Human Rights:
www.tgeu.org//sites/default/files/Verdict_H_v_FINLAND.pdf
<http://www.tgeu.org/sites/default/files/Verdict_H_v_FINLAND.pdf>
‘Gender Identity’ Case law at the European Court of Human Rights:
http://www.echr.coe.int/NR/rdonlyres/6E6BB0DC-A41D-4ADB-94B3-37407490C629/0/FICH\
ES_Identite_genre_EN.pdf
Decision of the Court of Appeal (Rennes, France):
http://www.lefigaro.fr/actualite-france/2012/10/16/01016-20121016ARTFIG00600-une\
-transsexuelle-pourra-rester-mariee.php
© TGEU 2009, TGEU - transgender europe
http://www.tgeu.org/Divorce_Requirement_is_Interference_in_Private_Life_says_Eur\
opean_Court
