The Court has recently announced it will deliver its judgment in the Hamalainen v Finland case on 16 July. The facts of this case are relatively straightforward. Heli Hamalainen, the applicant, is a trans woman who has been married for many years and who has a 12-year old child with her wife. She came out as transgender during marriage, and applied for legal gender recognition. The authorities in Finland rejected her request, as she and her wife were not willing to forgo their marriage, a precondition to legal gender recognition under national law. The applicant exhausted domestic remedies and lodged an application with the European Court of Human Rights, complaining about breaches of her rights under Article 8 (right to private and family life), Article 12 (right to marry) and Article 14 (prohibition of discrimination). On 13 November 2012, the Chamber rejected the complaint on all counts, based on reasoning that was reminiscent of that employed in the same-sex marriage case Schalk and Kopf v Austria. In that case, the Court made it clear that the Convention did not require states to open marriage to same-sex couples, and that that option remained within their margin of appreciation, at least for the time being. The Hamalainen judgment was even out of step with previous judgments in forced divorce cases (namely Parry v the United Kingdom), where the Court at least acknowledged the predicament of spouses in a transgender marriage faced with the choice between marriage and legal gender recognition. This article discusses some of the choices I have made, as the applicant’s main counsel, during proceedings before the Court, the different factors that may influence the eventual decision, as well as, briefly, the possible outcomes before the Grand Chamber.
I got involved in the case after the Chamber delivered its judgment, and asked that it be referred to the Grand Chamber, based on reasons discussed in a guest post published previously on this blog. In my request and subsequently during proceedings before the Grand Chamber, I tried very hard to distinguish the case from the broader question of same-sex marriage. Some commentators, including Paul Johnson, criticised my choice, stating that it would have been preferable to argue the case for same sex marriage more broadly. Indeed, equal marriage legislation also benefits transgender spouses, as it removes the underlying objection to legal gender recognition of the trans spouse. However, in my view, attempting to distance ourselves as much as possible from the contentious issue of same-sex marriage was the only reasonable chance we had to succeed.
The Court is obviously not ready to move forward on the issue, at least not until a more solid consensus builds among Council of Europe member states towards opening marriage to same-sex couples. And there are sufficient grounds for making this distinction – forced divorce legislation severs an existing marriage that is valid and intact, whereas discriminatory marriage legislation does not allow same-sex marriage to form in the first place. We emphasized that there were countries that had made this distinction (such as Germany and Switzerland), demonstrating that allowing transgender marriages to subsist did not necessarily require equalising marriage rights. Experience shows that the Court will only find a breach of the Convention on the narrowest of grounds, and that it usually refrains from deciding incidental issues that it was not called to decide in the first place. My choice was strategic, and is not dissimilar for example to that made by the applicants in X and Others v Austria, on second-parent adoption in a same-sex couple, who stressed that they were not seeking to compare their situation to that of married different sex couples (at §108). On the other hand, if I tried to draw attention from the elephant in the room - same-sex marriage - I did so in the knowledge that a positive outcome would benefit indirectly homosexual couples as well, by substantially undermining the rationale for preserving marriage as an institution reserved for different sex couples.
The particular setup in Finland makes this case a slightly more difficult proposal. Transgender marriages are not ended by divorce upon the legal gender recognition of one of the spouses (in that sense, the system may be more accurately described as triggering the “forced dissolution of marriage” rather than “forced divorce”). Instead, marriages are automatically and comparatively painlessly converted into registered partnerships, upon the consent of the cisgender spouse. In addition, registered partnerships in Finland are more or less identical to marriage in terms of the rights and benefits conferred on the spouses as well as in relation to their children. The legal regime in place in Finland is therefore relatively benign, at least compared to other countries where alternatives to marriage are not available and/or divorce proceedings are particularly arduous and lengthy.
It therefore follows that I had to fall back on the personal and religious significance of marriage in general, and to the spouses in this case in particular. Although the applicant had not made a claim under Article 9, I tried to introduce religious considerations through the back door of Article 8 - married life comes with the scope of “family rights” and marriage is recognised to also have a religious dimension. This is a very strong argument, particularly pertinent to the applicant and her spouse, which the Court cannot easily discount as it mines the rich vein of its jurisprudence emphasizing the privileged status of marriage, justifying preferential legal treatment. Particularly in our day and age, the state has no business whatsoever interfering with valid marriages under any pretext, including the gender identity of the parties. In that sense, forced marriage legislation, as well as the reasoning of the Chamber in this case, very well reveal (as argued by Andrew Sharpe in Transgender Jurisprudence: Dysphoric Bodiesof Law) the “intrinsic homophobia of the law.”
Three additional brief observations. Perhaps it would have been preferable to include the applicant’s spouse, as well as their child, as victims in their own right from the very beginning of the proceedings before the Court, as their family rights are more obviously interfered with. That said, the Court is obligated in principle to also consider the consequences of the forced divorce scheme on third parties, including family members, during its proportionality examination under Article 8. Second, two processes are ongoing in Finland in parallel with proceedings in this case, which may result eventually in the repealing of forced marriage legislation. A legislative initiative is currently before the Finnish Parliament to equalise marriage rights, which however appears to have run into some trouble; and a committee was formed to look into the possibility of revising legal gender recognition legislation, including by abandoning the divorce requirement. To the extent that either of these processes had been concluded successfully before the Court delivered its judgment, that would have constituted a substantial consideration in the process of adjudicating the case in Strasbourg as well, potentially undermining the government’s insistence that there had been religiously and morally inspired objections in Finland. Finally, I spent a fair amount of time and space trying to unpack the normative contents of Article 12 on the right to marry. Without going into details, it seems to me that forced divorce legislation empties Article 12 of any significance, to the extent that Article 12 is interpreted as allowing the state to interfere with valid marriages to the point of triggering their dissolution. It will be interesting to see how the Court decides this issue.
To conclude, there are three possible outcomes in this case. The first is a win, which may vary in scope, to include various combinations of the claims made. This would be an amazing outcome, with substantial consequences for standards in the area of legal gender recognition more generally as well as marriage rights. The second is a qualified loss, but based on a more principled and sympathetic approach to the applicant’s situation and transgender rights in general. In this scenario, the Court may reject the application based on the lack of any material differences between marriage and registered partnerships in Finland. While this would open the way for challenges against forced divorce legislation in countries without alternatives to marriage, it may spill over by encouraging states to maintain similar but segregated legal regimes for same-sex and different sex couples respectively. The third, and the least likely, outcome is the worst, with the Grand Chamber endorsing the Chamber decision, thus in effect denying the specificity of the issues raised in transgender cases.
Constantin Cojocariu is an independent human rights expert and lawyer specialised in advising transgender and disabled applicants in proceedings before the European Court of Human Rights.