Hämäläinen v Finland - the question of sexual orientation and religion

Now that the predictable but nevertheless disappointing Grand Chamber judgment in Hämäläinen v Finland has been delivered, it is worth reflecting on two key issues in the complaint which, in my opinion, have been very problematic throughout. 

The first concerns the strategy adopted by the applicant to argue that recognising a right under the Convention for the continuation of her (same-sex) marriage was separate from and different to the question of 'same-sex marriage' generally. 

One of the ways in which the applicant sought to gain recognition for her marriage under the Convention was to differentiate it from relationships between 'homosexuals'. 

The applicant argued:

The applicant’s gender reassignment did not necessarily transform the couple into a homosexual couple. The applicant’s wife, who had entered into the heterosexual relationship seventeen years ago, continued to be heterosexual (§ 44).

This view found some sympathy with the three dissenting judges who argued:

[T]he applicant’s spouse continues to identify as heterosexual [and] we believe that the majority did not take [this]  important factual information sufficiently into account (Joint Dissenting Opinion of Judges Sajó, Keller and Lemmens).

The dissenters went on to say:

[W]e submit that the applicant and her spouse are the victims of discrimination because the authorities fail to differentiate between their situation and that of homosexual couples [...] In fact, the national legal order treats their situation like that of homosexuals. However, at least at the time of their entry into marriage, the applicant and her spouse were not homosexual partners. Even after the applicant’s gender reassignment, it is an oversimplification of the situation to treat her relationship as a homosexual one. In our view, the crucial question regarding the discrimination issue is whether the State has failed to differentiate between the applicant’s situation and that of a homosexual couple by failing to introduce appropriate exceptions to the rule debarring same-sex couples from the institution of marriage [...] We regret that this issue was not raised (Joint Dissenting Opinion of Judges Sajó, Keller and Lemmens).

I am extremely pleased that the majority did not decide to consider the applicant and her wife as different to 'homosexual couples'.  Whilst I disagree with the conclusion of the majority - that a same-sex couple do not have marriage rights under the Convention - I am very pleased that the Court did not grant exceptional status to some same-sex couples on the basis that they claimed, by virtue of a previous or existing sexual orientation identification, not to be 'homosexual'. 

I find the reasoning of the dissenters - that a person is discriminated against because they are not differentiated from a discriminated group - to be perverse. 

As Robert Vanderbeck (University of Leeds) has argued, what the applicant sought in this case was to maintain her 'heterosexual privilege' to be married. Finding herself in the same situation that millions of same-sex couples find themselves in - denied full and equal protection under the law - she sought to hold onto the privilege of opposite-sex couples by invoking an identity as 'heterosexual'.

Thankfully, the Grand Chamber did not go down the road of recognising 'a same-sex couple comprising one transsexual and one other who continue to regard themselves as heterosexual' as separate from 'same-sex couples who are homosexuals'.

A second issue that I have found problematic is the attempt to privilege the applicant's marriage on the basis that it was a religiously solemnised marriage. 

Although the applicant never invoked Article 9 of the Convention - I have never understood why - she repeatedly argued that she should have a right to remain married because '[t]he spouses had contracted marriage on the understanding, inspired by their strong religious beliefs, that it would last for life' (§ 44).

Again, the three dissenters were in sympathy with this view, arguing that the applicant's religious conviction should have been taken into account.

I am extremely pleased that the majority did not recognise this argument as valid because there is no reason to privilege a marriage solemnised according to religious rites over a marriage solemnised according to civil law. 

I continue to be disappointed with the Grand Chamber judgment in this case. It significantly sets back the potential for same-sex couples to gain the protection afforded to opposite-sex couples under Article 12. 

However, I have been dismayed at the way in which those concerned with 'transgender rights' have sought to distinguish this complaint from the issue of 'same sex marriage' more generally. 

The judgment should be a reminder that we (LGB and T) are in this together, and we will gain recognition of our same-sex relationships together.