Monday, 4 March 2013

H. v Finland: transgender persons as collateral victims of prejudice against same-sex marriage


I am delighted to welcome Constantin Cojocariu to the ECHR Sexual Orientation Blog. Constantin, a lawyer working for Interights, has written a guest post on the recent judgment by the European Court of Human Rights in H. v Finland. Since the judgment in November 2012 - which I covered in Jurist - Interights has, on behalf of the applicant, filed a request for the case to be referred to the Grand Chamber of the Court. Full details of Interights' involvement can be found here: http://www.interights.org/h-v-finland/index.html Thank you to Constantin for this thought-provoking analysis. 

H. v Finland: transgender persons as collateral victims of prejudice against same-sex marriage
Constantin Cojocariu

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.

1 comment:

  1. http://helihamalainen.puheenvuoro.uusisuomi.fi/138499-both-and

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