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. 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. 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”.
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
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”.
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.
 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
 I am here referring to Martha Nussbaum’s essay, “A Right to Marry?”, Vol. 98, California Law Review (2010), 667.
 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.
 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.
 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.