European Court of Human Rights issues judgment in case from Finland
The European Court of Human Rights issued yesterday a judgment in H v Finland (Appl. no. 37359/09). The case concerned a trans woman who was refused to legally change her gender since she did not want to divorce her wife and enter a registered partnership instead.
The case H v Finland concerned a trans woman who had undergone gender reassignment treatment and had changed her first name. She wished to complete legal recognition of her gender through obtaining a new identity number, which would permit the change of her gender in official documents. However, this would have resulted in her marriage to a woman being converted into a registered partnership, something neither she nor her wife were prepared to accept. She complained that making the full recognition of her gender conditional on the transformation of her marriage into a civil partnership had violated her rights under Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination).
The European Court of Human Rights considered that there were two competing rights which needed to be balanced against each other, namely the applicant's right to respect for her private life, and the State's interest to maintain the traditional institution of marriage intact. It reiterated that Article 12 of the European Convention does not impose an obligation on Contracting States to grant same-sex couples access to marriage, and that regulating the effect of the change of gender in the context of marriage falls within the margin of appreciation of the Contracting State. It found that it was not disproportionate for the applicant's marriage to be turned into a civil partnership, since this provides legal protection for same-sex couples which is almost identical to that of marriage. It noted that there was no suggestion that the child from the marriage, or any other individual, would be adversely affected if the applicant's marriage was turned into a civil partnership. It concluded that the Finnish system had not been shown to be disproportionate, and that a fair balance had been struck between the competing interests in the case. There was therefore no violation of Article 8.
So far as Article 14 is concerned, the applicant complained that she had experienced discrimination compared to any other person, including non-transgender persons and unmarried transgender persons. The Court considered that her situation was not sufficiently similar to these, and that she could not therefore claim to be in the same situation as the other category of persons relied on.
The fact that in Finland there is an alternative to marriage in the form of registered partnership, which does not differ materially in rights from marriage, reduced the chances of this case succeeding. A case from a country without the alternative of registered partnership, and in which the couple or their child suffered a loss of tangible rights, would stand a better chance, although even then, in the absence of a European consensus on access to marriage by same-sex couples, success would require a major evolution in the jurisprudence of the Court.