Saturday, 19 July 2014

Hämäläinen v Finland - Guest Post by Silvia Falcetta

I am delighted to post a critical commentary by Silvia Falcetta on the Grand Chamber judgment in Hämäläinen v Finland

Silvia is undertaking doctoral work at the State University of Milan. Her PhD research is a sociological study of ECHR jurisprudence in respect of LGBT rights, which incorporates analysis of the decisions and judgments of the Court and the former Commission, as well as the role of NGOs and third party interventions in the litigation process. 

Many thanks to Silvia for this interesting and insightful piece. 

Hämäläinen v. Finland
By Silvia Falcetta

The Grand Chamber of the European Court of Human Rights has last week issued an important judgment on gender identity in the area of family life, addressing the question of the conversion of a marriage into a civil partnership due to the identity change of one of the spouses. The applicant is a transgender woman who wishes to obtain the full recognition of her new gender identity without severing the wedlock with her wife.

Ms. Hämäläinen at birth was assigned the male sex, she always felt a female but decided to cope with the situation (§10). In 1996 she married a woman and in 2002 they had a daughter. According to the Finnish Act on Confirmation of the Gender of a Transsexual, Act, the confirmation of such status required that the person was not married or that the spouse gave his/her consent to the transformation of the marriage in a civil partnership, the only legal recognition granted to same-sex couples by Finnish law. The applicant could, however, overcome the refusal of the spouse by divorcing and, thus, obtaining the fully recognition of new gender identity. Both the applicant and her wife refused this option, stating that a divorce would contrast with their personal and religious beliefs, and appealed for a repeal of this requirement. Having exhausted national remedies without success, the applicant complained to the European Court of Human Rights that the dispositions of the Act constituted a violation of article 8, 12 and 14 of the Convention. On 13 November 2012 the Fourth Section of the Court rejected unanimously the complaint on all counts, adopting a reasoning further subjected to academic critical analysis. Consequently, the applicant requested that the case be transferred to the Grand Chamber, hoping for a quash of the original judgment.

The Grand Chamber rejected with a significant majority, 14 to 3, the complaint, confirmed the previous Chamber judgment and it held that there had been no violation of article 8 and article 14 taken in conjunction with article 8 and 12. Furthermore, the Court found no need to examine the case under article 12 of the Convention. The Grand Chamber, thus, endorsed a doctrine of self-restraint in transgender and same-sex marriage and confirmed the legal relevance of the “State interest in maintaining the traditional institution of marriage intact”.

Two forms of reasoning arise in the judgment: the Court, on one side, allowed a wide national margin of appreciation on moral and sensitive issues, reaffirming a standpoint sympathetic to an heteronormative conception of law. Dissenting judges, on the other, challenged the Court's jurisprudence with regard to transgender and same sex marriage and strongly argued in favor of a more dynamic approach to the Convention.

A number of relevant facets emerge through the dialectic between the parts, I will flesh out only four issues here.

The symbolic meaning of marriage

The argument of the applicant for the recognition of her marriage heavily rests on the symbolic significance of marriage and on the alleged right not to be forced to terminate a marriage against personal religious beliefs (§44). Mr. Cojocariu, the applicant’s lawyer, recognized, on a post on this blog, that according to Finnish law registered partnership are quite identical to marriage in terms of the rights and benefits conferred on the spouses as well in relation to their children, and he added that the case for the legal recognition of a cisgender heterosexual marriage should be reconnected to the very social and religious meaning of marriage itself.

The symbolic significance of legal institutions, among which marriage is one of the most preeminent, is deeply analyzed in legal studies, as well as in political theory and social sciences[1]. Eminent scholars have approached the struggle for same-sex marriage from this standpoint and they disputed that being denied of right to marry leads to a unjustified exclusion from one of the most “defining rituals” of collective life[2]. Hämäläinen v. Finland has, thus, highlighted a core issue, underpinned by the whole strategic litigation policy on same sex couples, namely the refusal of separate but equal legal remedies because of the discrimination they reproduce.

Dissenting judges – Sajó, Keller, Lemmens - accorded a high degree of relevance to the point, stating:

It is in our view that the majority didn’t take into account the fact that the applicant and her spouse are deeply religious. (…) Given their religious background, the applicant and her spouse cannot simply change their marriage into partnership, as this would contradict their religious beliefs. (…) We believe that the majority did not take important factual information sufficiently into account ( Joint Dissenting opinion of Judges Sajó, Keller and Lemmen, §6)

The Court, indeed, recalled the religious beliefs of the applicant (§38), but didn’t take this aspect into consideration and, in determining the existence of a breach of article 8, the majority clearly abided only by practical and effective rights provided by marriage and civil partnership, stating:

The Court cannot therefore uphold the applicant’s complaint that the conversion of a marriage into a registered partnership would be akin to a divorce (§ 84)

The Court considers that the effects of the conversion of the applicant’s marriage into a registered partnership would be minimal or non- existent as far as the applicant’s family life is concerned. (…) It does not therefore matter, from the point of view of the protection afforded to family life, whether the applicant’s relationship with her family is based on marriage or registered partnership (§85)

The Court went on, then to say:

The minor differences between these two legal concepts are not capable of rendering the current Finnish system deficient (§ 87).

It may be argued that the Court is willing to refuse whatsoever referral to moral or symbolic conceptions of marriage; instead, the Grand Chamber has confirmed the legal relevance of “the State’s interest in maintaining the traditional institution of marriage intact” (§38), sharpening considerations already introduced in Schalk and Kopf and X. v Others judgments. Consequently, the Court seems deeply anchored to an heteronormative and asymmetric conception of marriage, since it addresses morals to affirm the particular status of heterosexual marriage but it refuses to use the same approach in order to critically evaluate the exclusion of same-sex couples from it.

Positive and negative obligations                                                                   

Whereas the Grand Chamber held that the central issue was to determine whether respect for  the applicant’s private and family life entails a positive obligation on the State to provide an effective and accessible procedure to have her new gender legally recognized while remaining married (§64), dissenting judges adopted the opposite standpoint and argued that the Court should have examined the case “as a potential breach of a negative obligation, for it neither requires any major steps by the State authorities nor entails important social or economic implications” (§4).

I argue that the relevance of this doctrinal disagreement is extremely important as it is grounded on a opposite evaluation of a possible distinction between transgender and same sex marriage and, besides, it leads to different conceptions of the right to marry secured by the Convention. Departing from the dissenters’ standpoint, there is room for a peculiar interpretation of Article 12, according to which the Convention should protect the right of men and women to marry as well as the right to “remained married unless compelling reasons justify an interference with the civil status of the spouses” (Joint Dissenting opinion of Judges Sajó, Keller and Lemmen,§ 16). The Court could have, then, imposed on the defendant State the negative obligation to unlink the confirmation of a new gender identity from the civil status of the applicant, without recognizing the access to marriage for same-sex couples. As stressed by the minority, such an argument has a legal grounding, being it recently adopted in three judgments of Constitutional Court of Austria, Germany and Italy, which have overturned decisions requiring the dissolution of pre-existing marriages as a precondition for the legal acknowledgment of acquired gender, without imposing same-sex marriage (§16). The Court, however, reiterated that “the applicant claim, if accepted, would in practice lead to a situation in which two persons of the same sex could be married to each other” and reaffirmed the conservative interpretation, according to which neither Article 8 nor Article 12 of the Convention can be interpreted as imposing an obligation on Contracting States to grant same-sex couples access to marriage (Schalk and Kopf §96, §101).

The approach to the margin of appreciation and the consensus analysis: different doctrinal and methodological standpoints

The evaluation of the case under positive obligations directly affects the use of the doctrine of the margin of appreciation and the consensus analysis.

According to a well established jurisprudence, the States enjoy a certain margin of appreciation that, in implementing positive obligations, becomes wider either in absence of a common consensus within the member Parties of Council of Europe or where the case raises sensitive moral and ethical issues (§ 67 present judgment, X,Y,Z v. the Uk §44, Fretté v. France §41, Goodwin v. Uk §85). In the present case the Court didn’t depart at all from previous judgments and made a severe statement that cut off, at least for now, hopes of LGB and T activists and supporters:

The margin must be in principle extended both to the State’s decision whether or not to enact legislation concerning legal recognition of the new gender of post-operative transsexuals and, having intervened, to the rules it lays down in order to achieve a balance between the competing public and private interests (§75).

A fair balance between competing values should be achieved through the consensus analysis, as far as even this doctrine has been subject to sharp and punctual critique. The evaluation of a common consensus collides with the primary task of the Convention to secure fundamental rights in the area of Council of Europe, since it refers to numbers and not values. Moreover, as Benvenisti argues, this doctrine is flawed from a theoretical perspective and harmful from a practical one. “By resorting to this device, the Court eschews responsibility for its decisions (…). It stops short of fulfilling the crucial task of becoming the external guardian against the tyranny by majorities[3]”.

The methodology of evaluating the existence of the consensus is also not univocally established. Let’s compare the Court’s reasoning to the dissenters’ one in the present case: the Court chose a static and narrow approach, turning only to those States that while permitting transgender marriage don’t recognize same-sex marriage. Besides, dissenting judges noted that the proof of a consensus must not depend on the existence of a common approach in super-majority of States and stated that the Court has some discretion regarding its acknowledgment of trends (Joint Dissenting opinion of Judges Sajó, Keller and Lemmen, § 5). Departing from this dynamic and evolutive conception of the Convention, there is a growing consensus on transgender rights: an increasing number of CoE States is dealing with the issue and several non European countries have recognized the existence of a third gender (Joint Dissenting opinion of Judges Sajó, Keller and Lemmen, § 5) §7.). The Grand Chamber has reversed the fundamental passage in the landmark Goodwin judgment according to which “The Court attaches less importance to the lack of evidence of a common European approach to the resolution (…) than to the clear and uncontested evidence of a continuing international trend” (Goodwin § 85 in H v. Finland Joint Dissenting opinion of Judges Sajó, Keller and Lemmen, § 5).

The Court, thus, accorded to national legislator latitude both in the substantial and in the structural aspect of margin of appreciation, posing under threat the universalistic aspiration of the Convention as well as the protection of minorities. I would like to end this paragraph recalling concerns raised on the point by Eyal Benvenisti:

This policy put quite a heavy burden on the advocates of the promotion of individuals and minority rights who must spread resources among the diverse national institutions in their effort to promote human rights. Only if they succeed in a sufficient number of jurisdictions will the Court be convinced that the status quo has changed and react accordingly. Such a policy cannot be said to be promoting human rights, especially not minority rights[4]

The separatism strategy: endorsing a heteronormative conception of marriage

I would like to close my reflection with a critical evaluation of the strategy followed by the applicant. With the term “separatism strategy” I refer to the deliberate choice of the applicant to distinguish her case from the issue of same-sex marriage. From a number of statements it actually seems that the applicant is committed to the traditional model of marriage and that she has displayed the whole reasoning trying to demonstrate that a transgender marriage perfectly fits to the typical ideal of marriage, precisely because it is a separate reality from same-sex marriage. This reasoning does not even try to criticize the heteronormative assumptions of marriage and simply asks for the inclusions of cisgenders marriages, emphasizing the enduring heterosexual orientation of spouses. Irrespective of the Grand Chamber final outcome, it is troublesome that the LGBT movement is so akin to split up, without even questioning the moral foundations entailed in the jurisprudence of the Court. This point reminds me of an observation by Morgan: “We have made some gains in being included in the heteronormative system. But … we have not been very successful at breaking down that system. We have not managed to challenge the heteronormative assumptions upon which the system is based[5]”.
This assimilative perspective could be very dangerous, since it draws efforts and attention to find the best way to suit to the traditional model of family life without questioning its discriminatory order.

[1] It appears to be a distinctive feature, embedded with a broader  social structure that has historically awarded the public power with the authority to decide which practices should be considered valuable
[2] I am here referring to Martha Nussbaum’s essay, “A  Right to Marry?”, Vol. 98, California Law Review (2010), 667.
[3] See E. Benvenisti, “Margin of Appreciation, Consensus, and Universal Standards”, Vol. 31 New York University Journal of International Law and Politics (1999), pp. 843-54, at p. 852.
[4] See E. Benvenisti, “Margin of Appreciation, Consensus, and Universal Standards”, Vol. 31 New York University Journal of International Law and Politics (1999), pp. 843-54, at p. 851.
[5] See W. Morgan, quoted in Paul Johnson, “Challenging the Heteronormativity of Marriage: The Role of Judicial Interpretation and Authority”, Vol. 20,  Social & Legal Studies (2011), p. 352.

Thursday, 17 July 2014

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. 

Wednesday, 16 July 2014

Hämäläinen v Finland - the Article 12 issue

One of the worst aspects of the judgment in Hämäläinen v Finland is that the Grand Chamber has now explicitly established that same-sex couples have no right related to marriage under Article 12 of the Convention. 

The Grand Chamber has stated that Article 12:

enshrines the traditional concept of marriage as being between a man and a woman [and] cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples (§ 96).

This interpretation by the Grand Chamber can be seen as much more decisive than the Chamber judgment in Schalk and Kopf v Austria which, although ultimately holding that Austria had not violated Article 12 by not permitting a same-sex couple to marry, did state:

the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex (§ 61). 

That statement produced dissent from Judges Malinverni and Kovler who stated that Article 12 is 'inapplicable to persons of the same sex'.

Hämäläinen v Finland seems to reiterate Malinverni and Kovler's view, rather than the interpretation that Article 12 might be applicable to persons of the same-sex in some circumstances. 

The majority in Hämäläinen v Finland quote the authority of the judgment in Rees v the United Kingdom to hold that Article 12 protects 'the traditional concept of marriage as being between a man and a woman'.

However, what the Grand Chamber does not do is to quote a key aspect of the Rees judgment which states that although Article 12 'lays down that the exercise of this right shall be subject to the national laws of the Contracting States' it is also the case that the 'limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired' (§ 50).

The Grand Chamber has not given any consideration as to whether Finland, in requiring Heli Hämäläinen to transform her marriage into a registered partnership, has impaired the very essence of the rights available under Article 12 (although we can take from the Grand Chamber's silence on this issue that it does not regard Finland to have done so).

Overall, what all same-sex couples (LGB and T) can take from the Grand Chamber judgment in Hämäläinen v Finland is that the European Court of Human Rights has no intention of recognising a right to marriage under the Convention in the near future. Like it has done so often in respect of so many complaints about inequalities based on sexual orientation in the time since the Convention came into force, the Court refuses to take a moral lead to address discrimination and relies on 'tradition' to stay in the safe waters of the status quo.

Hämäläinen v Finland - the Grand Chamber judgment

The Grand Chamber of the European Court of Human Rights has rejected by a majority of 14-3 the complaint in Hämäläinen v Finland.

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.

Hämäläinen v Finland - disappointing but predictable Grand Chamber judgment

The European Court of Human Rights has given its Grand Chamber judgment in Hämäläinen v Finland. 

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 Court has again asserted the view that the Convention does not impose an obligation on States to grant marriage rights to same-sex couples.

The Court rejected the complain under Article 8 and, like the Chamber, did not consider it under Article 12. It further rejected the Article 14 complaint. 

As I have written many times here, this outcome was predictable, not least because for the Court to have found in favour of the applicant it would have undermined all of its recent jurisprudence on same-sex marriage.

A more detailed commentary will follow...

Tuesday, 15 July 2014

Working Paper on the Anti-Homosexuality Act 2014 and the Parliament of Uganda

I have made available a working paper called 'Making unjust law: the Parliament of Uganda and the Anti-Homosexuality Act 2014'. 

The paper can be downloaded from the Social Science Research Network website here:

Here is the abstract:

This article provides a critical analysis of the Anti-Homosexuality Act 2014 and the process by which it was enacted by the Parliament of Uganda. Drawing on Hansard (the Official Report), as well as other parliamentary documents, I examine how the legislation was shaped and formed during its passage through Parliament. Through a detailed analysis of four key criminal offences created by the legislation, I argue that Ugandan legislators have enacted law that is often ambiguous, incoherent or redundant. I conclude by suggesting that an examination of the parliamentary process, and the legislation that resulted from it, can provide an important means of questioning and challenging the legitimacy of the Anti-Homosexuality Act 2014 and the Parliament that made it.  

Any comments or observations on the contents of this working paper will be very gratefully received.