Tuesday, 7 May 2013

Transgender rights in Croatia and the issue of same-sex marriage

In the context of the ongoing reform of the Croatian Registries Act, the Commissioner for Human Rights of the Council of Europe has called on the Croatian authorities to clarify the legal framework governing the official recognition of transgender persons’ preferred gender.

In a letter to the Croatian authorities, Nils Muižnieks urges Croatia to ensure its law are in line with the jurisprudence of the European Court of Human Rights (specifically Christine Goodwin v United Kingdom and L. v Lithuania) and the Committee of Ministers recommendation that all member states 'guarantee the full legal recognition of a person’s gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way' (see: CM/Rec(2010)5).

A key point made by the Commissioner is that 'divorce should not be a necessary condition for gender recognition as it can have a disproportionate effect on the right to family life'. This reiterates the recommendation made in
Discrimination on grounds of sexual orientation and gender identity in Europe.

This resonates with the Grand Chamber referral in H. v FinlandAs previously noted, any positive developments in respect of recognising that enforced divorce violates rights guaranteed by the Convention has considerable and wide implications for gay and lesbian couples who wish to contract civil marriage.

Whilst there are those who view the requirement that transgender persons end a heterosexual marriage in order to gain recognition for their gender as a specific transgender issue that has little to do with same-sex marriage rights - because, it is argued, the central issue concerns the state coercing someone to divorce whilst they are in an existing marriage, rather than granting them a right to contract that marriage in the first place - it will require considerable gymnastics (sociological, as well as legal) in the Court to justify why those in a same-sex relationship who have acquired their gender through the process of reassignment should have the protection of that relationship under Article 12 of the Convention whilst those in same-sex relationships who have not reassigned their gender should not.


  

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