Hämäläinen v Finland - Preview of the judgment by Constantin Cojocariu
In advance of the Grand Chamber judgment in Hämäläinen v Finland next Wednesday, Constantin Cojocariu has written a guest post on the case. Constantin is the applicant's lawyer, and represented her in the Grand Chamber hearing last October. Many thanks to Constantin for this insightful and interesting post.
The
Court has recently announced it will deliver its judgment in the Hamalainen v Finland case on 16 July. The
facts of this case are relatively straightforward. Heli Hamalainen, the
applicant, is a trans woman who has been married for many years and who has a 12-year
old child with her wife. She came out as transgender during marriage, and
applied for legal gender recognition. The authorities in Finland rejected her
request, as she and her wife were not willing to forgo their marriage, a
precondition to legal gender recognition under national law. The applicant exhausted
domestic remedies and lodged an application with the European Court of Human
Rights, complaining about breaches of her rights under Article 8 (right to
private and family life), Article 12 (right to marry) and Article 14
(prohibition of discrimination). On 13 November 2012, the Chamber rejected the
complaint on all counts, based on reasoning that was reminiscent of that
employed in the same-sex marriage case Schalk and Kopf v Austria. In that case, the Court made it clear that the
Convention did not require states to open marriage to same-sex couples, and
that that option remained within their margin of appreciation, at least for the
time being. The Hamalainen judgment
was even out of step with previous judgments in forced divorce cases (namely Parry v the United Kingdom), where the
Court at least acknowledged the predicament of spouses in a transgender
marriage faced with the choice between marriage and legal gender recognition. This
article discusses some of the choices I have made, as the applicant’s main
counsel, during proceedings before the Court, the different factors that may
influence the eventual decision, as well as, briefly, the possible outcomes
before the Grand Chamber.
I got
involved in the case after the Chamber delivered its judgment, and asked that
it be referred to the Grand Chamber, based on reasons discussed in a guest post
published previously on this blog. In my request and subsequently during
proceedings before the Grand Chamber, I tried very hard to distinguish the case
from the broader question of same-sex marriage. Some commentators, including Paul Johnson, criticised my choice, stating that it would have been
preferable to argue the case for same sex marriage more broadly. Indeed, equal
marriage legislation also benefits transgender spouses, as it removes the
underlying objection to legal gender recognition of the trans spouse. However,
in my view, attempting to distance ourselves as much as possible from the
contentious issue of same-sex marriage was the only reasonable chance we had to
succeed.
The
Court is obviously not ready to move forward on the issue, at least not until a
more solid consensus builds among Council of Europe member states towards
opening marriage to same-sex couples. And there are sufficient grounds for
making this distinction – forced divorce legislation severs an existing
marriage that is valid and intact, whereas discriminatory marriage legislation
does not allow same-sex marriage to form in the first place. We emphasized that
there were countries that had made this distinction (such as Germany and
Switzerland), demonstrating that allowing transgender marriages to subsist did
not necessarily require equalising marriage rights. Experience shows that the
Court will only find a breach of the Convention on the narrowest of grounds,
and that it usually refrains from deciding incidental issues that it was not
called to decide in the first place. My choice was strategic, and is not
dissimilar for example to that made by the applicants in X and Others v Austria, on second-parent adoption in a same-sex
couple, who stressed that they were not seeking to compare their situation to
that of married different sex couples (at §108). On the other hand, if I
tried to draw attention from the elephant in the room - same-sex marriage - I
did so in the knowledge that a positive outcome would benefit indirectly homosexual couples as
well, by substantially undermining the rationale for preserving marriage as an
institution reserved for different sex couples.
The particular
setup in Finland makes this case a slightly more difficult proposal. Transgender
marriages are not ended by divorce upon the legal gender recognition of one of
the spouses (in that sense, the system may be more accurately described as
triggering the “forced dissolution of marriage” rather than “forced divorce”).
Instead, marriages are automatically and comparatively painlessly converted
into registered partnerships, upon the consent of the cisgender spouse. In
addition, registered partnerships in Finland are more or less identical to
marriage in terms of the rights and benefits conferred on the spouses as well
as in relation to their children. The legal regime in place in Finland is therefore
relatively benign, at least compared to other countries where alternatives to marriage
are not available and/or divorce proceedings are particularly arduous and
lengthy.
It
therefore follows that I had to fall back on the personal and religious
significance of marriage in general, and to the spouses in this case in
particular. Although the applicant had not made a claim under Article 9, I tried
to introduce religious considerations through the back door of Article 8 - married
life comes with the scope of “family rights” and marriage is recognised to also
have a religious dimension. This is a very strong argument, particularly
pertinent to the applicant and her spouse, which the Court cannot easily
discount as it mines the rich vein of its jurisprudence emphasizing the privileged
status of marriage, justifying preferential legal treatment. Particularly in our
day and age, the state has no business whatsoever interfering with valid
marriages under any pretext, including the gender identity of the parties. In
that sense, forced marriage legislation, as well as the reasoning of the
Chamber in this case, very well reveal (as argued by Andrew Sharpe in Transgender Jurisprudence: Dysphoric Bodiesof Law) the “intrinsic homophobia of the law.”
Three
additional brief observations. Perhaps it would have been preferable to include
the applicant’s spouse, as well as their child, as victims in their own right
from the very beginning of the proceedings before the Court, as their family
rights are more obviously interfered with. That said, the Court is obligated in
principle to also consider the consequences of the forced divorce scheme on
third parties, including family members, during its proportionality examination
under Article 8. Second, two processes are ongoing in Finland in parallel with
proceedings in this case, which may result eventually in the repealing of
forced marriage legislation. A legislative initiative is currently before the
Finnish Parliament to equalise marriage rights, which however appears to have
run into some trouble; and a committee was formed to look into the possibility
of revising legal gender recognition legislation, including by abandoning the
divorce requirement. To the extent that either of these processes had been
concluded successfully before the Court delivered its judgment, that would have
constituted a substantial consideration in the process of adjudicating the case
in Strasbourg as well, potentially undermining the government’s insistence that
there had been religiously and morally inspired objections in Finland. Finally,
I spent a fair amount of time and space trying to unpack the normative contents
of Article 12 on the right to marry. Without going into details, it seems to me
that forced divorce legislation empties Article 12 of any significance, to the
extent that Article 12 is interpreted as allowing the state to interfere with
valid marriages to the point of triggering their dissolution. It will be
interesting to see how the Court decides this issue.
To
conclude, there are three possible outcomes in this case. The first is a win,
which may vary in scope, to include various combinations of the claims made. This
would be an amazing outcome, with substantial consequences for standards in the
area of legal gender recognition more generally as well as marriage rights. The
second is a qualified loss, but based on a more principled and sympathetic
approach to the applicant’s situation and transgender rights in general. In
this scenario, the Court may reject the application based on the lack of any material
differences between marriage and registered partnerships in Finland. While this would open the way for challenges
against forced divorce legislation in countries without alternatives to
marriage, it may spill over by encouraging states to maintain similar but
segregated legal regimes for same-sex and different sex couples respectively. The
third, and the least likely, outcome is the worst, with the Grand Chamber endorsing
the Chamber decision, thus in effect denying the specificity of the issues
raised in transgender cases.
Constantin Cojocariu is an independent human
rights expert and lawyer specialised in advising transgender and disabled
applicants in proceedings before the European Court of Human Rights.
The Finnish administrative judicial procedure does not allow the appellant status of a spouse or a child if their rights and obligations are altered by the Finnish authority nowise. Thus they cannot act as appellants in the ECHR procedure either because they have adequate national remedies.
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