H. v Finland: transgender persons as collateral victims of prejudice
against same-sex marriage
That the European Court of Human Rights’ judgment in the case H. v.
Finland delivered on 13 November 2012 passed almost unnoticed, is symptomatic
of the fact that the widespread discrimination and human rights abuse that
transgender persons suffer from remain largely ignored or neglected. Uniquely,
such abuse is institutionalised in the form of legislation on the legal recognition
of gender identity that includes harsh and extraordinary requirements such as
compulsory divorce (as exemplified by this case), forced genital surgery and
other medical treatment, and sterilisation. Although the Christine Goodwin v.
the United Kingdom judgment represented a breakthrough for transgender rights
in that it legitimised the act of crossing across the gender divide, it also
stymied any further progress by explicitly allowing states discretion to
regulate the process of legal gender recognition, including by imposing the
requirements mentioned above. H. v. Finland is one of the Court’s first
attempts at grappling with the issue of the compatibility of requirements
attached to legal gender recognition with the European Convention on Human Rights.
On this occasion, the Court committed some manifest errors, mainly as a
consequence of misconstruing H. as a case about same-sex marriage. The Court
almost completely ignored the applicant’s family rights claims although they
qualify for heightened protection under the Convention. In addition, the Court
offered a contradictory interpretation of Article 12 concerning the right to
marry, which, it decided, applied and did not apply to the case at the same
time. The Court would be well advised to accept the request pending before it
that the case be referred to its Grand Chamber, before such an erroneous
interpretation of the law becomes too entrenched.
The judgment
The applicant is a transgender woman. She was assigned
the male sex at birth, but in 2006 she was diagnosed with gender identity
disorder. She underwent gender reassignment surgery and started living as a
woman. The applicant has been happily married to her wife since 1996, with whom
she had a child. Although the applicant was able to change her first name to a
female name, her personal documents continue to identify her as male. The
applicant filed a request to have this information changed in order to reflect
her self-identified gender identity as a woman. Domestic courts in Finland
rejected her request invoking legislation that made legal gender recognition of
a married person contingent on them first obtaining a divorce.
The applicant turned to the European Court of Human
Rights, arguing that the compulsory divorce requirement in Finnish law was in
breach of her rights under the Convention. On 13 November 2012 the Court
declared the complaint admissible, but rejected it on the merits. In doing so,
the Court relied heavily on its judgment in the same-sex marriage case Schalk and Kopf
v. Austria. In that judgment, the Court rejected the applicants’
marriage claim on the basis that Article 12 defined marriage as a union between
a man and a woman, and, in addition, allowed States discretion to regulate the
issue.
Under Article 8, the Court balanced the applicant’s
right to legal gender recognition against the State’s interest to protect the
traditional institution of marriage. In addition to relying on Article 12 as
discussed above, the Court stated that it was essentially up to the applicant
to make the choice between her marriage and legal gender recognition. In this
context, the Court attached weight to the fact that the applicant had the
possibility under Finnish law to turn his marriage ex lege into a same-sex
registered partnership that offered similar benefits to marriage. The Court
summarily rejected the applicants’ additional claims. In particular, the Court
ruled that Article 12 was not applicable to the case since it only concerned
the time when marriage was concluded, whereas nothing prevented the applicant
from getting married in the first place.
Comments
As opposed to previous jurisprudence, on this
occasion the Court did not fall back on the margin of appreciation doctrine,
but instead engaged in a proportionality analysis on the substance of the case.
Even so, in my opinion the Court made some manifest errors. Mainly, the Court
construed H. v. Finland as a case concerning same-sex
marriage, and consequently applied its precedent in Schalk and Kopf v.
Austria to deny the applicant’s claims. However, H. v. Finland concerns
primarily the applicant’s quest to live according to her self-identified gender
identity, with same-sex marriage being an incidental and undesired outcome. By
construing the case in this manner, the Court mistakenly relied on the broad
consensus against same-sex marriage in Europe, as per the Schalk and
Kopf ruling. Thus, the Court ignored the situation in many European
countries which ban same-sex marriage, but which do not at the same time make
legal gender recognition contingent on the divorce of the person concerned.
Seen through this lens, the relevant consensus changes, to the extent that it
actually favours the applicant – according to a 2012 ILGA Europe
survey, 24 countries do not require married transgender persons to
divorce upon obtaining legal gender recognition (including the six countries
that allow same-sex marriage), as opposed to 22 countries that do, with the
situation in one country being divided. Germany and Austria stand out among
these countries as legal change there occurred as a result of authoritative
apex court judgments (the Constitutional Court and the Supreme Court
respectively). The situation in these countries fundamentally undermines the
Court’s assumption that compulsory divorce legislation is a proportionate means
for securing the objective of protecting the traditional institution of
marriage as a union between a man and a woman.
The Court largely ignored the implications of
compulsory divorce regulations in Finland for the applicant’s marriage and
family life, which it did not include in the balancing exercise undertaken
under Article 8 of the Convention. Admittedly, in Finland registered
partnership is comparable to marriage in terms of the legal benefits offered.
However, as the Court itself had emphasized on countless occasions when it was
occupied to justify its special status, marriage has social and symbolic
connotations that cannot easily be dismissed. This case reveals tensions in the
Court’s jurisprudence more broadly, since on the one hand the Court emphasizes
the importance of marriage justifying enhanced protection, and yet on the other
it trivializes its significance in order to justify why some people (like the
applicant) should be deprived of it. In addition, the Court has not considered
in any detail the consequences of prolonged uncertainty and of the eventual
dissolution of marriage on the applicant’s wife and minor daughter. What
matters more though is that, as opposed to the applicants in Schalk and
Kopf who demanded recognition of a presumptive right to get married,
the applicant in this case benefited from an acquired right, which has to be
protected in the interest of legal certainty, which the Court recognized
elsewhere as a “an underlying value of the Convention” (Fabris v. France[GC],
§66).
This case touches on another grey area
in the Court’s case-law, namely that of the material scope of Article 12 and of
its relationship with Article 8. As noted above, the Court held that Article 12
was not applicable to this case (§53), although adjudication under this heading
could have been a viable alternative to Article 8 insofar as the applicant’s
family rights claim was concerned. The Court’s approach is manifestly
inconsistent, as it decided that Article 12 applied and did not apply to this
case at the same time. On the one hand the Court relied on the strictures of
Article 12 (marriage between man and woman, state discretion) to deny the
applicant’s claims under Articles 8 and 12, on the other hand it declared
Article 12 inapplicable, because it only concerned the foundational act of
marriage and not married life as such. In my view, a consistent and logical
interpretation of Article 12 left two possibilities to the Court. Either the
Court could opt for a narrow interpretation of Article 12 as applying strictly
to the foundational act of marriage. In this scenario Article 12 would not be
an obstacle to recognising the continued validity of the applicant’s marriage subsequently
to her legal gender recognition, as at the time when they got married the
applicant and her spouse were a different sex couple. Or, the Court could
interpret Article 12 more broadly to apply to married life in general and in
particular to any interference resulting in the termination of marriage as
exemplified by this case. In this scenario the Court would have to examine
whether legislation compelling the applicant to divorce injures the “very
substance of the right” to marry in line with its previous jurisprudence.
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