Friday, 18 October 2013

Hämäläinen v Finland - Grand Chamber hearing

The webcast of the Grand Chamber hearing in Hämäläinen v Finland is now available on the Court's website. 

The applicant was well represented by Constantin Cojocariu, who made a strong case to the Grand Chamber.

My impression of listening to the submission of the applicant is as follows:

The applicant makes a strong and coherent case under Article 8 to demonstrate the violation of her private and family life created by the requirement that she divorce her wife in order to have her gender identity recognized. She contests the claim, advanced by the Finnish Government, that there are ‘minor differences' between marriage and registered partnership. Rather, she argues that marriage has a unique social and religious status. She repeatedly stresses that under no circumstances will she undertake to transform her marriage into a registered partnership and forego the social and religious status of her current marriage. 

The applicant compares the current Finnish law requiring her to divorce with Nazi policies promoting Aryan marriage and discouraging mixed-race marriage.

The applicant relies on consensus analysis, noting that only 6 Council of Europe states require compulsory divorce by transgender individuals prior to full gender recognition. 

The applicant makes an interesting submission under Article 12, arguing that in the original Chamber judgment it was interpreted in too restrictive a way and concentrated solely on the formation of marriage (in contrast to the Court's wider jurisprudence which focuses on issues outside of this). The applicant also contests that the language of ‘men and women’ used in Article 12 must in all circumstances be limited to person of opposite gender (and cites the Court's judgement in Schalk and Kopf v Austria to support this). 

The applicant's Article 14 submission rests on how she suffers daily discrimination on the grounds of gender not suffered by non-transgender people. These daily difficulties include international travel problems (a key aspect of her work) created by the discontinuity between her passport, which shows her gender as male, and her visible appearance. She also argues that she suffers non-trivial and daily embarrassment created by the inspection of other documents, such as public travel documents, that show her gender as male.

Perhaps one of the most crucial aspects of the applicant's overall submission, and one which I find disappointing, is the reiteration of the claim that ‘we do not seek the legalization of same-sex marriage in this case’. The applicant, as in her original submission, distinguishes her transgender marriage from issues relating to same-sex marriage because, she contends, a right to stay married after gender reassignment is not equivalent to a right to contract a new same-sex marriage. She also states that recognizing the ‘tiny amount of transgender marriage’ will not create an expectation to recognise same-sex marriage generally.

In this sense, as I have previously argued, the applicant is attempting to make a highly unconvincing distinction between persons in her situation and non-transgender same-sex (homosexual) couples. It can be seen as a politically motivated distinction, designed to distance the case from broader debates about whether same-sex couples have a right to marriage under Article 12.

The problem with making this distinction - as expedient as it may appear - is that the central issue in this case is same-sex marriage. The Finnish state does not insist on the applicant divorcing prior to recognizing her gender because it is against transexual marriage, but because it does not recognize marriage between two people of the same-sex. Any distinction between transgender and homosexual persons is irrelevant. Persons in the applicant's situation are required to divorce because the state will not recognize any same-sex marriage. The requirement for the applicant to divorce is created only because the state does not recognize same-sex marriage and, ultimately, what the applicant is seeking is that recognition. 

I also found the distinction between transgender and homosexual marriage highly unconvincing because the applicant relied on statistics regarding support for same-sex marriage in Finland and the recent close vote in the Finnish legislature in respect of legalizing same-sex marriage - neither of which related simply to issues of transsexuality but to same-sex (homosexual) marriage more generally. Also, in respect of her Article 12 argument, the applicant argued that forcing her to divorce deprives her of her right to marry since being able to marry an opposite sex person would be of no consolation.

My overall conclusion on this aspect of the applicant's submission is that, like in all other situations when same-sex transgender couples attempt to distance themselves from homosexuality, it may tell us something interesting about the social construction of gender and sexuality but it is highly problematic from a legal point of view.

The Court will be well aware that if it finds in the applicant's favour, and recognizes a violation of any aspect of the Convention, it will open the way for a range of complaints from same-sex couples who wish to contract marriage in states that do not allow it. And those complaints will have the novel quality of advancing claims about discrimination between two groups that the Court will have recognized as distinct in respect of marriage: transgender same-sex couples and non-transgender same-sex couples. 











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