Gregor Puppinck, Director of the European Centre for Law and Justice (a 'Christian-inspired organisation'), has written a commentary on H. v Finland. This case, as I detailed in an earlier post, has been referred to the Grand Chamber of the European Court of Human Rights.
Writing in Zenit ('an international, non-profit news agency staffed by a team of professionals and volunteers who are convinced that the extraordinary wisdom of the Pontiff and the Catholic Church can nourish hope, and assist all of humanity to find truth, justice and beauty') Puppinck makes a number of criticisms of the Court's original judgment and its decision to refer the case to the Grand Chamber.
Puppinck argues that it is 'not clear' how the issues raised in the case relate to the requirement (under Article 43 of the Convention) that any referral to the Grand Chamber must raise a serious question affecting the interpretation or application of the Convention, or a serious issue of general importance.
Even within the limited terms of the Convention, it is difficult to understand how anyone could not see the 'serious question' or 'serious issue' involved. The Convention provides an unqualified right to marriage (for men and woman of marriageable age) and the issue facing the applicant, as a transsexual, is the legal requirement that she divorce her wife in order to obtain legal recognition of her assumed sex. For individuals in the applicant's circumstances, the state's refusal to recognize a marriage as legally valid following gender reassignment, and the compulsion to divorce that this creates, is undoubtedly a serious question requiring an interpretation of the Convention by the Court.
Yet, Puppinck argues that it is not a serious issue or question that has driven the referral of this case to the Grand Chamber but, rather, 'the particular attention of judges desiring the development of "LGBT rights"'. Puppinck suggests that judges in the Court have decided 'that the time has come to establish a new right' for 'LGBT' people. He therefore regards this judicial activism as relating to lesbian, gay, bisexual, as well as, transgender issues.
The argument that the Court is too pro-LGBT is, of course, a well worn one. But it is always surprising in the context of the longer history of LGBT related complaints in the Court. Depicting the Court as intent on continuously promoting LGBT interests may have some rhetorical or ideological cache, but it belies the empirical reality of the Court's jurisprudence and case history.
Puppinck's chief criticism of the Court relates to its acceptance of what he calls 'a double definition of sex'. That is: '[t]he objective definition which considers the biological sex, and the subjective definition, which considers the social sex'. Puppinck is critical of the Court's production of the 'legal fiction' that 'social sex' can be the basis for protection under the Convention. He argues: 'the purpose of legal fictions is not to emancipate us from reality, through the law, but the normal function of re-establishing concordance between the law and reality'.
The distinction between 'biological' and 'social' sex that Puppinck makes is, for social scientists, deeply problematic. Sociologists, for example, have long argued that what is regarded as 'biological' sex is in fact socially constructed. In other words, that the material reality of biological sex only assumes meaning in respect of social relations and norms. Whilst the Court cannot be said to have wholly adopted this constructivist understanding of sex/gender, it has been more subtle in its approach than Puppinck.
For example, in Christine Goodwin v the United Kingdom the Court stated that, given the 'increasingly sophisticated surgery and types of hormonal treatments available, the principal unchanging biological aspect of gender identity is the chromosomal element'. However, the Court noted that 'chromosomal anomalies may arise naturally (for example, in cases of intersex conditions where the biological criteria at birth are not congruent) and in those cases, some persons have to be assigned to one sex or the other as seems most appropriate in the circumstances of the individual case'. The Court therefore acknowledged the social influence on biological sex even in respect of chromosomal difference. In light of this, the Court was not persuaded that 'the state of medical science or scientific knowledge provides any determining argument as regards the legal recognition of transsexuals'.
The Court's reasoning in Christine Goodwin was not an attempt to divorce law from reality. Rather, the Court went to significant lengths to try to make law better reflect reality. It achieved this by recognizing that 'a test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual' because of 'other important factors', such as: 'the acceptance of the condition of gender identity disorder by the medical professions and health authorities within Contracting States, the provision of treatment including surgery to assimilate the individual as closely as possible to the gender in which they perceive that they properly belong and the assumption by the transsexual of the social role of the assigned gender'.
In Christine Goodwin, the Court's jurisprudence was aimed at undoing a legal fiction - the fiction expressed in laws that do not recognize the existence of transsexuals - in order to make law congruent with reality. In H. v Finland, the same basic issue is at stake, which is that the reality of an individual's existence is incongrous with the law. Those who want to maintain the heteronormativity of marriage and have the law reflect it may find comfort in claims about 'objective biological sex', but the Court has already dismissed similar 'scientific' claims. Therefore, those opposed to same-sex marriage - which is the key issue in H. v Finland - need a more robust justification for why human rights law should reflect their particularly narrow and exclusionary vision of reality. A vision of reality that is, ultimately, a fiction.