Case Watch: European Court Defers to States on Same-Sex Marriage

In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.

When can a European state force you to terminate your own marriage? On July 16, 2014, the Grand Chamber of the European Court of Human Rights ruled that a transsexual woman must break  her existing marriage in order to receive official recognition of her gender—with reasoning that reflects the wide deference the court continues to accord states on the definition of “the traditional concept of marriage.”

Heli Hämäläinen is a married, 49 year-old customs officer. Although born male, she always felt trapped in the gender of her birth and in 2006 was diagnosed as transgender, undergoing transgender surgery in 2009. The Finnish government subsequently refused to acknowlege this change in her national identification registration; as a result, she regularly faces difficulties with officialdom, including being embarrassed, delayed or barred from travel.

In line with European Court of Human Rights (ECHR) jurisprudence, Finland has adopted gender recognition legislation for post-operative transsexuals. However, Finland’s gender recognition legislation does not allow transsexual individuals to register their chosen gender and also continue a pre-existing marriage. Previously married transsexual individuals must either divorce or, with consent of the spouse, convert the marriage into a same-sex civil partnership. Under Finnish law, marriage is reserved exclusively for different-sex relationships. The Finnish government contends that to permit Hämäläinen to be recognized as a woman while remaining married would violate the “traditional concept of marriage between a man and a woman.”

This law places Hämäläinen and her wife of 18 years in a difficult position. As Evangelical Lutherans, they are opposed to divorce and Hämäläinen’s wife, a hetrosexual, is opposed to a civil partnership. Additionally, a civil partnership would not offer the couple the same security as marriage and would revoke their rights to adopt additional children. Since the sex change, the couple have continued to live together and jointly raise their child. After Hämäläinen’s proceedings in Finnish courts were all dismissed, she brought her case to the European Court of Human Rights, claiming violations of her privacy (Article 8), right to marriage (Article 12), and right to equal protection and non-discrimination (Article 14). Initially, a trial chamber of the European Court of Human Rights in November 2012 unanimously rejected all her claims. The chamber found the interference with Mrs. Hämäläinen’s privacy resulting from the Finnish law justified, proportionate, and “necessary” to democratic society.

Hämäläinen then appealed to the Grand Chamber, which ruled 14 to 3 that Finland had not violated her convention rights. The court reframed the principle Article 8 claim as a positive obligation, asking whether Article 8 necessitated a positive obligation on Finland to provide procedures for legal gender recognition to married transsexual individuals. In doing so, the court discarded the approach of the chamber and the parties involved to examine the claim as a negative obligation, asking whether the state interfered with the Article 8 right to privacy. By introducing this framework and then citing a lack of consensus within European state practice, the court was able to accord Finland considerable deference vis-à-vis its obligations towards the privacy of its citizens and find the Finnish law sufficient to meet its positive obligations under Article 8.

In reaching this conclusion, the court characterized the requested relief as practically amounting to same-sex marriage, for which the court affirmed no positive obligations existed. Because Finnish law allowed Hämäläinen the option of a civil partnership with legal protections comparable to marriage, the court found the Finnish law struck a fair balance between Hämäläinen’s privacy interest and the state’s interest to maintain “the traditional concept of marriage.” For the same reason, the law was found a proportionate means to meet that objective.

Hämäläinen additionally claimed her right to marry under Article 12 and equal protection under Article 14 were violated. The court did not evaluate the Article 12 claim, asserting that the effects of the Finnish gender recognition law on Hämäläinen’s pre-existing marriage was sufficiently evaluated under Article 8. The court stated that Article 12 “enshrines the traditional concept of marriage as being between a man and a women” and “Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples.” The court additionally neglected to examine the merits of the Article 14 claim of discrimination. The claim requires a showing of differential treatment in comparison to a “similarly situated group” and Hämäläinen claimed that she was treated differently from cissexuals in regards to obtaining gender recognition and protection of her marriage. Cissexuals, individuals who retain the gender of their birth, are not forced to divorce or alter their civil status in order to gain recognition of their gender by the state. The court ruled the situation of cissexuals and transsexuals was not similar enough for comparison, without explaining why that was the case.

The dissent articulately identified the most troubling aspects of the ruling. Firstly, the three judges question the necessity of analyzing the Article 8 claim as a positive obligation due to its wider degree of deference to states. Secondly, they criticize the majority’s exclusive reliance on one factor, consensus within state practice, to set the degree of deference owed to state practice, instead of using it in conjunction with other factors. Additionally, the court ignored factors counseling for a restricted degree of deference, such as the importance of the right to an individual’s existence or identity. And lastly, the dissent questions the majority’s assumption that Hämäläinen had a real choice to have her gender recognized when that right is pitted against the right to maintain her civil status and religious beliefs.

Meanwhile, a citizen’s initiative last year in favor of equal marriage rights in Finland—the last Scandinavian nation without same-sex marriage—garnered a record number of signatures and propelled the issue into political discourse, so progress might materialize on that front in the near future. Until then, however, Ms. Hämäläinen is forced to choose between her marriage and a life marred by the discrepancy between her real self and the identity the state has assigned to her.

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