The Grand Chamber has confirmed the original Chamber judgment that Finland, in requiring a transexual person to transform an opposite-sex marriage into a same-sex civil partnership in order to obtain full recognition of their gender, did not violate any aspect of the Convention.
The Grand Chamber judgment is predictable but interesting for a number of reasons:
First, under the Article 8 complaint the Court decided to explicitly address the complaint as an issue of same-sex marriage. Although the applicant had tried to distance the complaint from the broader 'politics' of same-sex marriage (something which I have been critical of because, after all, the applicant is seeking recognition from the state to be married in a same-sex partnership) the Court would not accept this. The Grand Chamber stated:
The Court is mindful of the fact that the applicant is not advocating same-sex marriage in general but merely wants to preserve her own marriage. However, it considers that the applicant’s claim, if accepted, would in practice lead to a situation in which two persons of the same sex could be married to each other (§ 70).
From that starting point, the Court was able to dismiss the Article 8 complaint by:
- Reciting its existing case law to reiterate that the Convention does not oblige a Contracting State to offer same-sex couples access to marriage;
- Emphasising that there is no European consensus on same-sex marriage or how to deal with gender recognition in the case of pre-existing marriages;
- Stating that Finland offers the applicant an adequate alternative to marriage and that she is not 'forced' to divorce.
In conclusion, the Court reiterated its previous view that:
it is not disproportionate to require, as a precondition to legal recognition of an acquired gender, that the applicant’s marriage be converted into a registered partnership as that is a genuine option which provides legal protection for same-sex couples that is almost identical to that of marriage [...] The minor differences between these two legal concepts are not capable of rendering the current Finnish system deficient from the point of view of the State’s positive obligation (§ 87).
The important point here is that the Grand Chamber will tolerate same-sex couples being offered relationship recognition that is 'almost identical' to that of marriage but has 'minor differences' to it.
A second point of interest is that the Grand Chamber took exactly the same view as the Chamber in respect of Article 12: that is, it would not examine the complaint under it.
This is surprising, given that the Grand Chamber had an opportunity to settle its jurisprudence in this area under Article 12 for years to come. But the Court remains silent on the merits of the Article 12 issue.
Third, and relatedly, the Grand Chamber rejected the complaint under Article 14 on the basis of analogous position. That is, it stated that the applicant is not in a relevantly similar position to a comparator to claim that she is being discriminated against. In taking this line, the Grand Chamber gave no consideration to the merits of the discrimination claim.
Fourth, of significant interest is the Joint Dissenting Opinion of Judges Sajó, Keller and Lemmens. This will require close reading, given that it provides a comprehensive dissent on doctrinal, methodological and moral grounds.
Whilst Judges Sajó, Keller and Lemmens found that there had been a violation of Article 8, of equal significance is their view that the complaint should have been examined under Article 12 and that the Court 'should have gone into more depth' in respect of its Article 14 consideration.
This Dissent will become important in the years ahead.
Overall, this is a predictable judgment which reiterates the Court's view that same-sex couples have no rights relating to marriage under the Convention.