H v. Finland

Application No. 37359/09
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The applicant, H., was born male, married a woman, and had a child. She was diagnosed as transgender during the course of the marriage, whereupon she changed her first names and renewed her passport and driver’s license. However, her request to have her identity number changed was refused based on sections 1 and 2 of the Act on Confirmation of the Gender of a Transsexual, which required her to either be unmarried or have her spouse consent to the change. If H’s spouse consented, their marriage would immediately be transformed into a civil partnership, as Finnish law prohibited same-sex marriage. H.’s spouse did not consent, and her passport and driver’s license continued to indicate that she was male.

H. appealed to the Helsinki Administrative Court, arguing that she was prevented from registering as female because her partner would not give consent, they wished to remain married, they believed a civil partnership would not provide the same security under the law, and they were concerned the transformation would interfere with their child’s constitutional rights. The Court rejected the appeal. H. then appealed to the Supreme Administrative Court, claiming transgenderism was a private medical condition and that H.’s privacy was violated every time her male identity number revealed her to be transgender. The Court rejected the appeal.

H. brought her case to the European Court of Human Rights, arguing that her rights under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“Convention”), which protects the right  to private and family life, had been violated when the recognition of her new gender was made conditional on the transformation of her marriage into a civil partnership. She also alleged violations of Article 14 (prohibition on discrimination) and Article 12 (right to marry).

The Court dismissed H.’s application, holding that there was no violation of Article 8, no violation of Article 14 in light of that finding, and that there was no need to examine Article 12.

Regarding Article 8, the Court found that in light of Article 8 § 2, the interference by the Finnish Government had a basis in national law in section 2, subsection 1 of the Act on Confirmation of the Gender of a Transsexual, which was aimed at protecting the health and morals and rights and freedoms of others. As a result, under Article 8 § 2 H.’s right to respect for her private life had to be balanced against the State’s interest to keep the traditional institution of marriage intact.

The Court held that because  case law regarding Article 12 prevented it from requiring  the State to grant same-sex couples access to marriage, the broader purpose and scope entailed by Article 8 could not be read as holding the power to enforce same-sex marriage. The Court also noted that H.’s options for changing her gender on her identity number and passport were not disproportionate because H.’s spouse’s rights were also at stake, and because the civil partnership provided essentially the same legal protections to both the couple, and to their child, as were enjoyed in marriage. As a result, the Court found that the Finnish system struck a fair balance between the competing interests, and that the interference into the applicant’s right to respect for her private life was justified.

Regarding Article 12, the Court held that the issue at stake did not actually involve the right to marry, but rather the right of a same-sex couple to stay married, and found it unnecessary to examine the facts of the case in light of this provision.

The Court held that Article 14 did not have an independent existence, but existed solely to ensure the enjoyment of the rights and freedoms secured by the other provisions free from discrimination.  The Court found that because the essence of the issue centered on the fact that Finnish law did not allow same-sex marriage, Article 14 taken in conjunction with Article 8 could not be interpreted as imposing an obligation on Finland to allow same-sex marriage for the same reasons Articles 8 and 12 had failed, and that a finding of discrimination was therefore pre-empted. The Court also found that H. was comparing her situation to that of non-transgender and unmarried transgender persons, who were not sufficiently similar for comparison.

Finally, under Article 35 §§ 2(a) and 4, the Court held that H.’s allegations of violations of Article 3 (prohibition on torture), Article 14 (prohibition on discrimination), and Article 2 of Protocol No. 4 (freedom of movement) were all manifestly ill-founded and inadmissible.

“The Government argued that Article 12 did not protect the applicant’s wish to remain married to her female spouse after the confirmation of her female gender. The legal effects of civil partnership were largely similar to those of a marriage. Between spouses the legal effects were exactly the same but in relation to children there were some differences. The Paternity Act and the Adoption Act were not applicable to civil partnerships if parenthood had not been established earlier. Presumed or established paternity did not change when a man became a woman, nor had the reassignment any legal effects on the person’s liability for care, custody or maintenance of a child. The applicant’s rights or obligations arising either from the partnership or parenthood would therefore not be altered. There was thus no violation of Article 12 of the Convention.” Para. 36.

“While it is true that the applicant faces daily situations in which the incorrect identity number creates inconvenience for her, the Court considers that the applicant has a real possibility to change that state of affairs: her marriage can be turned at any time, ex lege, into a civil partnership with the consent of her spouse. If no such consent is obtained, the applicant has the possibility to divorce. For the Court it is not disproportionate to require that the spouse give consent to such a change as her rights are also at stake. Nor is it disproportionate that the applicant’s marriage be turned into a civil partnership as the latter is a real option which provides legal protection for same-sex couples which is almost identical to that of marriage.” Para. 50.

“[I]n essence the problem in the present case is caused by the fact that Finnish law does not allow same-sex marriages. The Court has already noted above (see paragraph 50) that, according to its case-law, Articles 8 and 12 do not impose an obligation on Contracting States to grant same-sex couples access to marriage (see Schalk and Kopf v. Austria, cited above, § 101). Nor can Article 14 taken in conjunction with Article 8 be interpreted as imposing an obligation on Contracting States to grant same-sex couples a right to remain married. Therefore, in the light of these findings, it cannot be said that the applicant has been discriminated against vis-à-vis other persons when not being able to obtain a female identity number, even assuming that she could be considered to be in a similar position to them.” Para. 66.

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