Legally Male, Physically Female

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The European Court of Human Rights (ECHR) was recently presented a case out of Finland where an individual who was born male, had gender reassignment surgery, which affected her marital status with her wife. The allegations claimed that the plaintiff’s right to respect for private and family life and right to marry were violated. The Court disagreed; furthermore, they found there was no discrimination in the case either.

Heil Hämäläinen, born male, married a woman, had a child, and in 2009, had gender reassignment surgery. After successfully changing her name, she wished to indicate through her identity number that she was now female, legally changing her gender. However, the registry office prohibited her from doing so unless she divorced her wife or changed her marital status to a civil partnership. Citing religious reasons for refusing a divorce and the fact that her family would not receive the same benefits as a married family would, she refused to comply with the requirements and brought suit in Finland. On appeal, the court cited Finnish law, which allows only a man and a woman to marry, and stated that a transsexual’s changed gender should not be permitted as an exception to that rule.

Hämäläinen argued to the ECHR that her rights under Article 8, 12, and 14 were violated: right to respect for private and family life, right to marry, and prohibition of discrimination, respectively. In November of 2012, the Court found there were no violations, citing the balance between the country’s right to uphold traditional marriage laws and the transsexual’s right to obtain a new gender identity. They also cited the fact that civil partnership rights in Finland are almost identical to the rights of those who are married. After the ruling, Amnesty International and Transgender Europe stepped in to advocate for the cause and the case was referred to the ECHR’s Grand Chamber.

The Grand Chamber’s ruling on July 16, 2014 upheld the Chamber judgment, finding that in no way did this situation involve a forced divorce, since two individuals already in a legal marital union now do not fit the definition of a traditional married couple. In many other jurisdictions, forced divorce is common for married individuals who undergo gender reassignment surgery. Furthermore, the Court stated, Hämäläinen still had full parental rights to her child and would have continued legal rights to her daughter if she chose to register her union as a civil partnership in order to obtain legal recognition of her gender. The court cited that it had no obligation to force Finland to allow same-sex marriage or accommodations for exceptional circumstances such as this one.

Do you agree with the ECHR’s ruling? Do you think if this case was brought in America that the result would be the same? On the federal level? On the state level?

 

Source:

[ECHR]

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[Human Rights Comment]

One comment

  1. I do agree with the Court’s decision. Although there is undoubtedly a moral, social, and legal debate and controversy over same-sex marriage, and one may rule the opposite on a social level, legally the Court’s decision is the correct decision. Finland does not recognize same-sex or a transgender’s right to obtain a new gender identity. As such, the ECHR could not possibly deem a violation of Articles 8, 12, 14. Finland is allowed to preserve the sanctity of traditional marriage and until the law changes, there can be no violation in this case. If this case was brought in Federal Court in the United States, there could potentially be a violation because of Windsor and the unconstitutionality of section 3 of DOMA. However, just like in this case, if this case were brought in a state, which did not recognize same sex marriage, this marriage would likely no longer be recognized. Perhaps, it is time for a change in Finland to recognize same-sex marriage; however, until that happens, I agree with the Court that there has not been a violation of Hämäläinen’s human rights.

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