Friday, 27 September 2013

Hämäläinen v Finland


The European Court of Human Rights has announced the date for its Grand Chamber hearing in the case Hämäläinen v Finland (previously H. v Finland).

This will take place on 16 October 2013 at 9.15a.m.

The case concerns a complaint made by a post-operative transsexual about the requirement that she transform her marriage to her female spouse into a civil partnership in order to gain full legal gender recognition in Finland. 

The Court previously rejected Ms. Hämäläinen's complaint under Article 8, Article 14 taken with Article 8, and Article 12. 

In respect of Article 8 the Court concluded that 'the effects of the Finnish system have not been shown to be disproportionate and that a fair balance has been struck between the competing interests [...] The interference with the applicant’s right to respect for her private life was thus justified'.

In respect of Article 14 taken with Article 8 the court rejected the complaint about discrimination both on the grounds of analogous situation and because neither Article 8 or 12 require contracting states to recognise same sex marriage. 

The outcome of this case in the Grand Chamber is extremely important, not just for individuals in the position of Ms. Hämäläinen but for the larger group of individuals who wish to contract same-sex marriage in contracting states that currently do not allow it.

As I have argued before, some have stated that this is not a case about the right to contract same-sex marriage. Indeed, in its Chamber judgment, the Court said it would not consider the applicant's Article 12 complaint separately because: 'Article 12 of the Convention [...] guarantees a right to marry. The applicant has been legally married since 1996. The issue at stake rather concerns the consequences of the applicant’s change of gender for the existing marriage between her and her spouse'.

However, the Court noted in its Chamber judgment that the question of whether there is an obligation under the Convention to grant same-sex couples access to marriage is closely bound up with the question of whether their is an obligation to allow same-sex couples to remain married. 

The same link between the provision to allow same-sex couples to marry and the rights of post-operative transsexuals to remain married to a same-sex partner is made in the Court's earlier admissibility decision in Parry v the United Kingdom.

If the Court finds in favour of Ms. Hämäläinen it does not follow that it will then recognise a right to same-sex marriage under Article 12 of the Convention. Finding that the Finnish state has disproportionally and unnecessarily interfered with the applicant's Article 8 rights by requiring compulsory divorce is very different to saying that she has a right to contract same-sex marriage.

However, if the Court rules that Finland must legally recognise Ms. Hämäläinen's same-sex marriage it will take a step that will be of considerable importance for those who want to gain recognition for same-sex marriage under the Convention. For, in essence, the Court will have said that same-sex marriage is protected by the Convention. 


The full press release of the Court can be found here:

http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-4513967-5445179



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