Tuesday, 30 April 2013

H. v Finland - Grand Chamber referral accepted

The European Court of Human Rights has today announced that the applicant's request for referral to the Grand Chamber in H. v Finland has been accepted. 

This is significant, since the case concerns an issue relevant to both transgender and sexual orientation rights in respect of marriage. 

The applicant, who underwent male-to-female gender reassignment surgery in 2009, complained about the existence of Finnish law that required her to transform her marriage into a civil partnership in order to obtain a new identity number that would indicate her female gender in her official documents. 

In its Chamber judgment, the Fourth Section of the Court held that the requirement that the applicant effectively divorce her wife did not constitute a violation of Article 8 of the Convention, nor a violation of Article 14 taken in conjunction with Article 8, and decided that there was no need to examine the case under Article 12.

If the Grand Chamber reversed the Chamber judgment and found a violation of either Articles 8 or 12 (with or without Article 14) this would be the most significant judgment it has reached so far in respect of same-sex marriage. 

Although the applicant in H. v Finland has been clear to distance the complaint from issues relating to homosexuality and same-sex marriage (a line of argument which will undoubtedly be a source of contention among LGBT human rights activists if it is again pursued in the Grand Chamber hearing) any favourable judgment would have wide implication for same-sex couples. 

The Court, like some contracting states that allow transgender individuals to contract opposite-sex civil marriage, has so far attempted to hold apart the issues of transgender and same-sex marriage rights. In Schalk and Kopf v Austria the Court stated that the principles established in Christine Goodwin v the United Kingdom - which concerns the rights of transgender individuals to enter into opposite sex marriage - did not impose any obligation on contracting states to grant same-sex couples access to marriage because Christine Goodwin was concerned with marriage of partners who are of different genders, even if gender is not defined by purely biological criteria. 

The position adopted by the Court in Schalk and Kopf is not sustainable if it decides to find in favour of the applicant in H. v Finland because the applicant wishes to remain married to a person of the same gender. 

Two observations can be made at this early stage:

1. Because of the position adopted by the Court in Schalk and Kopf it seems unlikely that the Grand Chamber will find in favour of the applicant in H. v Finland.

2. However, if the Grand Chamber does find in favour of the applicant in H. v Finland the Court is going to have to produce a completely new set of reasons for why those who have undergone gender reassignment surgery in order to acquire the opposite gender should be able to contract marriage with someone of the same sex, whereas those who have acquired their gender without surgery should not. 



My original analysis of H. v Finland can be found at Jurist here:

http://jurist.org/hotline/2012/11/paul-johnson-h-finland.php




1 comment:

  1. The applicant isn't contracting a marriage to someone of the same sex though. They are already in such a marriage, it exists.

    This is the current de legis practice in many jurisdictions. The state has no power to coerce divorce.

    The only question is, is the biological reality that she's female going to be ignored simply because she's married, or not?

    Consider a same-sex couple, married in another jurisdiction, who emigrate to Finland. There's no requirement that one of them have an opposite-sex identity card. Their marriage is still intact, even if not recognised within Finland. If they leave, it still exists.

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