Wednesday, 30 October 2013

Heli Hämäläinen: Defending our faith and marriage


As readers of this Blog will know, I have followed the case of Hämäläinen v Finland (formerly H. v Finland) for some time. I wrote a critique of the original Chamber judgment in Jurist the day after it was issued, and have posted regularly on the case since then. The applicant's lawyer, Constantin Cojocariu, also contributed a guest post to the Blog prior to the case being accepted for referral to the Grand Chamber.   
I am therefore delighted to now post a piece by Heli Hämäläinen herself. In this piece, Heli, as well as her wife (through correspondence to the Court), explain that, in their view, the requirement to divorce in order to gain full gender recognition centres on an issue of faith. Heli and her wife are Evangelical Lutherans who feel that, regardless of the circumstances of sex/gender, they should not be compelled to degrade their marriage sacraments. 
For me, Heli's post further confirms the important issues raised by the complaint under the Convention for all couples who, by virtue of sex, are not afforded the recognition available to heterosexual couples. It also reveals a rich vein of potential arguments to be made under Article 9 of the Convention: does the failure to recognise the marriage of couples in Heli's position violate the right to freedom of religion?
As Heli recognises, some of the arguments made in her post are controversial. For me, as I have often argued, I find the distancing of the facts from the broader issues of same-sex marriage problematic. However, I think that her argument acutely demonstrates the pain and suffering created by the divergence between the reality of her life and the fiction of law. 

Defending our faith and marriage, by Heli Hämäläinen
On 16 October the Grand Chamber of the European Court of Human Rights had a hearing in the case Hämäläinen versus Finland, 37359/09. The case was referred to the Grand Chamber by me. I am the applicant of that case.
The Court put questions that were recorded in a webcast here. It was observed by the audience that consisted of inter alia Polish judges and prosecutors, Belgian judges, Supreme Court of Norway, Registry of the German Federal Constitutional Court, Ukranian judges, as well as judges from Luxembourg.
In those questions, among others, there was a question about the motives of my wife. I told her about these questions and she was willing to write a letter to the Court where she tells her opinion. I have edited her opinion in a way in this blog that I maintain her privacy.

27 October 2013 
To the European Court of Human Rights
Dear President of the European Court of Human Rights,
I am [Her name], the wedded wife of my spouse Heli Hämäläinen who had a name [male name] when we joined in a holy matrimony, a religious marriage in Keuruu church on 27 July 1996. I was born and grew in Keuruu that is a municipality in Central Finland province.
I am not an applicant of the ongoing case but the questions asked by the Judge Päivi Hirvelä and partly by the Judge András Sajó concerns deeply my personal private life. I want to answer these questions with this letter.
The Judge Päivi Hirvelä asked did I objected to the legal recognition of the acquired gender of my spouse. My answer is that this consent is similar to the wedding vows. If I had consented my religious marriage would have been turned into a civil one because there is no religious registered partnership available in the Finnish legislation. I did not want to give up my wedding vows with a new civil ceremony.
I was not aware of the transsexuality of my husband when we married because it was a hidden secret. My husband wanted to keep this issue in a closet until after the birth of our daughter in autumn 2004 he told me about his problems, e. g. teasing advertisements that haunt him and remind him about womanhood. I proposed that he should seek for professional help. And he did. He was sent to transsexuality investigations in accordance with the Decree of the Ministry of Social Affairs and Health No. 1053/2002. He got a diagnosis F64.0 in April 2006 that actually he is a she and I have to adapt to that fact.
I have considered the found transsexuality as an illness. It is like cancer, there is a treatment practice for that illness. I am aware that when I call this phenomenon an illness I may hurt someone. But since in Finland it has a diagnosis and requires an intervention of modern medicine I can call it an illness. There is no spousal consent required in Finland for the treatment of illnesses. That treatment of illnesses is regulated by the civil code No. 785/1992, Act on the Status and Rights of Patients. The only cases when a consent is required by that law is when there are underage children or people with a lost mental capacity concerned. And as a wife of the patient I am not a patient nor under any treatments. 
Summarizing everything aforementioned , I was never asked a question whether I accept the change of gender of my spouse. I was asked a question whether I consent with the degradation of my religious marriage to something else. And my answer is no. The documentation of this event is in the decision of Helsinki Magistrate No 23/07:
 ”Hämäläinen on avioliitossa. Helsingin maistraatissa Hämäläisen aviopuoliso on ilmoittanut henkilökohtaisesti, ettei hän anna tai tule antamaan suostumusta avioliiton muuttamiseksi rekisteröidyksi parisuhteeksi.”
 ”Hämäläinen is married. In Helsinki Magistrate the marital spouse of Hämäläinen has informed in person that she is not giving or will not consent to the transform of her marriage into a registered partnership.”
 Helsinki Magistrate repeats this in other wording in its rejoinder to the appeal of my husband to Helsinki Administrative Court, Nro: 25/07:
 ”Lain 2§:n mukaan voidaan poikkeuksellisesti avioliitossa elävän vastakkainen sukupuoli vahvistaa, jos toinen osapuoli on antanut muutokseen suostumuksensa. Hakijan vaimo ei ole suostunut avioliiton muuttamiseen rekisteröidyksi parisuhteeksi. Sen vuoksi valitus tulisi hylätä.”
”According to the section 2 of the act, the opposite gender of the married applicant can be recognized exceptionally, if the other party has consented with the transformation. The wife of the applicant has not consented with the transformation of marriage into a registered partnership. Therefore the appeal should be rejected.”
The question is about the religious marriage. I have entered into a holy matrimony and other arrangement is against my religious conviction and puts me in an unequal position vis-à-vis compared to other wives having a spouse with a treatable disease.
 Yours faithfully,
 [Her name]
the wife of the applicant

I agree with her though I know that the comparison of transsexuality with a serious illness is quite controversial in some circles.
While the tendency of the Finnish government representatives was to produce proof how civil marriage is similar to the registered partnership, they parallelled a religious marriage with a registered partnership ignoring its religious importance in the case in question.
In Finland a religious marriage does not have a religious counterpart in the Act on registered partnerships. The provisions are enacted in the Marriage act (234/1929).

Chapter 4 — Marriage ceremony (411/1987)

Section 14 (411/1987)

(1) A marriage ceremony shall be performed in the presence of relatives or otherwitnesses either as a religious or a civil ceremony.
(2) A religious ceremony may be performed in an Evangelical Lutheran church or in aGreek Orthodox church or in another religious community to which the Ministry ofEducation has granted a license to perform marriage ceremonies.
(3) Provisions on the registration of licenses to perform marriage ceremonies shall beissued by Decree. (417/1993)

Section 15 (411/1987)

The engaged persons shall be simultaneously present at the marriage ceremony.
After both engaged persons have given the officiator of the ceremony an affirmative answer to the question whether he or she wants to marry the other, the officiator shall pronounce them husband and wife.

Section 16 (411/1987)

(1) In addition to the provisions in section 15, the other conditions and forms of a religious marriage ceremony shall be laid down by the religious community in question.
(2) Provisions on a civil marriage ceremony shall be issued by Decree.

Section 17 (411/1987)

(1) A religious marriage ceremony may be performed by:
(1) in the Evangelical Lutheran church by a priest;
(2) in the Greek Orthodox church by a priest; and
(3) in another religious community by a person who, under the rules of the community, has the right to perform marriage ceremonies.
(2) A civil marriage ceremony shall be performed by:
(1) the Chief Judge of a District Court, a District Judge, and
(2) a District Registrar. (1428/1992)

Section 18 (411/1987)

(1) A marriage ceremony shall not be performed if the officiator is aware of a fact that forms an impediment to the marriage or if the officiator deems that an engaged person is evidently unable to understand the significance of marriage due to his or her disturbed state of mind.
(2) Before performing the marriage ceremony, the officiator shall make sure that the examination of impediments to marriage has been carried out in accordance with the provisions in sections 11—13. If the certificate referred to in section 13 has been issued more than four months before, the marriage ceremony shall not be performed on the basis thereof.

Section 19 (411/1987)

(1) A marriage ceremony shall be void if it has not been performed in accordance with the provisions of section 15 or if the ceremony has been performed by a person without the right to perform marriage ceremonies.
(2) The President of the Republic may, however, for especially weighty reasons decide that a marriage ceremony void under paragraph (1) shall be deemed valid. A petition to this effect may be filed by either of the persons married or, if one of them is dead, by his or her heirs.

In the Section 4 of the Act on Registered Partnerships (950/2001) is enacted
Section 4
(1) Partnership shall be registered by an authority entitled to perform civil marriage ceremonies.
The law clearly distinguishes between religious and civil marriages. The Ratione Materiae has to be extended with the consent of the spouse only. In that case the civil marriage officiator asks from the spouse does she consent with the transformation of a religious marriage into a registered partnership that is to some extent compatible with a civil marriage. If that consent is needed the whole scope of the prerequisite is of not being in a religious marriage. So the legislator trades the wedding vows of the spouse with the gender recognition of the transsexual other party of the marriage. 

We have been attacked by the Catholic society. In their point of view they oppose my gender recognition on the ground that it would allow the introduction of a same-sex marriage that way.

http://www.zenit.org/en/articles/marriage-and-gender-identity-before-european-rights-court

http://www.ordoiuris.pl/h--v-finlandia--malzenstwo-i-tozsamosc-plciowa-przed-wielka-izba-europejskiego-trybunalu-praw-czlowieka,3293,analiza-prawna.html

This case is not about same-sex marriages. It is about the defence of faith.

Matthew 19:3-6
New Revised Standard Version Catholic Edition (NRSVCE)
3 Some Pharisees came to him, and to test him they asked, “Is it lawful for a man to divorce his wife for any cause?” 4 He answered, “Have you not read that the one who made them at the beginning ‘made them male and female,’ 5 and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’? 6 So they are no longer two, but one flesh. Therefore what God has joined together, let no one separate.

That is an ultimate interdict. It concerns free men and slaves equally. It is a God's commandment, do not touch the marriages that have become families. We are one flesh, at least in our offspring.
We are not Catholic. We are members of the Evangelical Lutheran Church of Finland. The Catholics are degrading their marriage sacrament when they are demanding divorces in the case of marriages having one transsexual party. Jesus puts it:

Matthew 25:40

New Revised Standard Version Catholic Edition (NRSVCE)
40 And the king will answer them, ‘Truly I tell you, just as you did it to one of the least of these who are members of my family, you did it to me.’

For us marriage is not a sacrament. Instead we want to follow the scripture here. Sola Scriptura. As Martin Luther put it:

"Unless I am convinced by the testimony of the Scriptures or by clear reason (for I do not trust either in the pope or in councils alone, since it is well known that they have often erred and contradicted themselves), I am bound by the Scriptures I have quoted and my conscience is captive to the Word of God. I cannot and will not recant anything, since it is neither safe nor right to go against conscience. May God help me. Amen."




Thank to Heli for this post, which was originally made available here:


1 comment:

  1. Here is a related blog entry. The reason why the article 9 is not applicable is the fact that a gender recognition is not a religious event but a religious marriage is that. And the religious marriage can prevail if the both parties want to stay married in a holy matrimony. Thus it is a matter of private and family life within the scope of article 8.

    http://www.lawandreligionuk.com/2012/11/20/the-ecthr-and-transsexual-same-sex-marriage/

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