This article is an edited version of a presentation that I gave at the Rights on the Move: Rainbow Families in Europe Conference that took place in Trento, Italy, on 16-17 October 2014.
This article offers a different perspective on the recent European Court of Human Rights Hämäläinen v. Finland judgment, primarily informed by my experience of acting as the applicant’s representative. As this is not intended to be an exhaustive analysis, I will try, as much as possible, not to reiterate criticism already formulated by Judges Sajó, Keller and Lemmens in their brilliant dissenting opinion, as well as by other commentators (see for example hereor here). At the same time, mine is a view centered more on trans rights, as opposed to other commentators, who usually examined the judgment against the context of the Court’s jurisprudence on same-sex families more broadly. I advance two particular suggestions. First, the fact that trans people frequently inhabit a space of legal informality across Europe renders some of the Court’s methodological tools inappropriate – and I refer here in particular to consensus. Second, this judgment demonstrates that existing legal categories (such as sexual orientation) do not provide a satisfactory basis for categorizing trans people’s claims. This means that alternative arguments may have to be developed that more accurately reflect the particular experience of trans people.
(caption from public hearing before the Grand Chamber on 16 October 2013)
Which consensus?
The facts of the case are quite straightforward – the applicant celebrated a heterosexual marriage as a man, had a child together with her wife, and after ten years of married life came out as a trans woman. Under Finnish law, legal gender recognition of a married individual is conditional on a relatively seamless conversion of marriage into registered partnership, offering, for all effects and purposes, the same legal rights as marriage. The applicant argued before the Court that this amounted to forced divorce and complained about the breach of her rights under Articles 8 (right to private and family life), 12 (right to marry) and 14 (prohibition of discrimination) of the Convention. The Court rejected the applicant’s claims twice – in Chamberand Grand Chamber formations respectively. The Grand Chamber held that Member States (MS) did not have an obligation to open marriage to same sex couples and that in any event it was not disproportionate to ask the applicant to accept a change in her civil status as a result of legal gender recognition, seeing that registered partnership was more or less identical to marriage in its legal effects.
The Hämäläinen Court’s determination that there was no consensus among MS on the issues involved in the case was critical to the eventual outcome. However, there are a number of general and trans-specific objections in relation to the manner in which the Court measured and then employed consensus. There are significant differences between the Court’s own survey and information available from other sources. In Hämäläinen, the Court found that 24 MS “have no clear legal framework for legal gender recognition or no legal provisions which specifically deal with the status of married persons who have undergone gender reassignment” (at §32). In the seminal trans rights case Christine Goodwin v. United Kingdomdecided twelve years earlier in 2002, the Court relied on a finding that a vast majority of the MS surveyed (33 out of 37) permitted legal gender recognition (at §§55, 84). The two data sets don’t appear to square up, suggesting that there has been some backsliding since Goodwin, which surely cannot be accepted. On the other hand, a Europe-wide survey undertaken by ILGA Europe in 2012, which I referred to in my submissions, suggested that a slim majority of 24 ½ out of 47 MS permitted trans marriages to subsist post-legal gender recognition of one of the spouses.
The disparity between these surveys may possibly be explained by a difference in methodologies. Legal gender recognition is available in many countries based on administrative or judicial practice, which may be unreported, even in the absence of expressly stated legal rules. Even if such practice may be inconsistent or unclear, trans people may in effect be able to change their documents in many countries that the Court cited as lacking explicit legislation in the area. Furthermore, the Court cannot draw the conclusion that married people cannot transition legally simply from the absence of specific regulations to that effect. Particularly in a civil law tradition, courts will frequently require that any cause for the dissolution of marriage – including in the context of legal gender recognition – be expressly provided for in the law. For example, in 2006, the Austrian Constitutional Court ruled out forced divorce in a transgender marriage as it lacked a clear basis in the law. To the extent that consensus is based on a black or white reading of the law, it may not therefore represent an accurate depiction of the situation of trans people in many countries. Furthermore, the Court’s approach to consensus in Hämäläinen begs the broader question if any progress on trans rights is even feasible in the short term, given the unavoidable weight of a large number of countries with unclear procedures on legal gender recognition.
This notwithstanding, there still are some countries, such as Ireland, where legal gender recognition is simply not available, in any circumstances. The situation in those countries is in breach of existing jurisprudence to start with, as the Court had already largely validated the standard promoted by the Committee of Ministers that legal gender recognition procedures must be available, that should be “quick, transparent and accessible”, in cases such as Christine Goodwin v. United Kingdom or L. v. Lithuania. The Court cannot legitimately rely on a states’ culpable failure to comply with clear jurisprudence to build a consensus against trans people seeking legal gender recognition, like Heli Hämäläinen.
Any inferences drawn from a flawed survey must surely also be questionable. The Court had several alternatives to the problematic approach of focusing on the large number of countries said to lack clearly stated legislation on legal gender recognition, which it had recourse to elsewhere in its jurisprudence. It could have discarded consensus as an adjudicatory tool in this case because it has not yielded useful results. It could have relied on clearly identifiable trends across Europe towards the simplification of legal gender recognition procedures, including by abandoning forced divorce, as argued by the applicant and the third party interveners in the case, and as per its celebrated approach in Christine Godwin. Finally, it could have taken into account the sample of states that took an explicit stand on the issue of transgender marriages, one way or the other, as it did in Vallianatos v. Greece or in X and others v Austria. Consensus determined in this way would actually have favored the applicant - 13 out of 19 countries would not have interfered with her marriage.
It has been pointed out elsewhere that at times the Court appears to manufacture a consensus to suit a predetermined outcome. On the other hand, in Hämäläinen consensus appear to shift even within the same judgment, leading to alarming conclusions. The Court stated initially that 24 out of 47 MS either lacked any legal framework on gender recognition OR specifically banned married people from changing their documents, warranting a wide margin of appreciation. However, at §80 the Court noted that “contrary to the majority of the Council of Europe member States, there exists a legal framework in Finland designed to provide legal recognition for the change of gender.” It appears that the Court all of a sudden made an assumption that all those 24 countries lacked any cognizable gender recognition frameworks, omitting to take into account the unspecified number of countries where legal gender recognition was possible, even if at the same time their position on transgender marriages was not clearly stated. This may have been an error, but it led to the questionable and unwarranted conclusion that the margin of appreciation “must in principle extend 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” (at §75). Judge Ziemele, concurring, emphasized the same point, stating that since “Finland already belongs to a minority group of States which recognize the relevant legal consequences of a gender change…, [it] is rather advanced in its internal processes as compared with the other societies and probably does comply with positive obligations in so far as they can be deduced to exist.” Since Finland already went beyond what was strictly required under the Convention, Judge Ziemele’s reasoning went, the Court might as well have stopped at this juncture without going into the proportionality analysis.
The manner in which the Court manipulated consensus in Hämäläinenhas the potential to destabilize its jurisprudence on trans rights, and weaken rights that we thought had already been won. Christine Goodwin is a celebrated precedent precisely because it removed legal gender recognition from the margin of appreciation, and recognized it as a right derived from Article 8, corresponding to a positive obligation that states owed under the Convention. MS do not have a choice in this respect, as the Court now suggests in Hämäläinen. Although alarming, this statement may have been an oversight, as the Court actually reiterated approvingly the holding in Goodwin and its progeny in its recapitulation of the principles applicable to the case (at§68). Nevertheless, the contradictory statements that the Court makes once against demonstrate that the Goodwinjudgment has not been sufficiently internalized in Strasbourg, and may be seized on by governments in future litigation to make life harder for trans claimants.
The problems with utilizing sexual orientation as an exclusionary criterion in the case of transgender marriages
From the beginning of my involvement after the Chamber’s ruling, I tried very hard to distinguish the applicant’s situation from that of a same-sex marriage seeking to get married (for more details about my strategy see my previous articles hereand here). On the one hand, I was aware that the Court was not willing to change tack so soon after its latest ruling on same-sex marriage in Schalk and Kopf v Austria. On the other hand, it seemed to me that there were genuine and material distinctions between the two situations. Ultimately, the Court concluded sternly that regardless of the fact that the applicant had not advocated for same-sex marriage in general, the fact remained that her claim, if accepted, would lead to the existence of a same-sex marriage (at §70). In that respect, the findings from Schalk and Kopf, to the effect that Article 8 cannot be interpreted to impose on obligation on Contracting States to grant same sex couples access to marriage, at least not until the prevailing consensus against same sex marriage changed, also had to apply in Hämäläinen. Judge Ziemele dissenting interpreted the majority’s rationale in the same key – that “there has been no violation on account of the absence of a specific positive obligation to introduce legislation on same-sex marriages.”
Leaving aside the distinction between the acquired right to remain married and the presumptive right to get married, which goes to the heart of the case, I find it almost offensive that the applicant’s relationship should come to be defined exclusively on the basis of a criterion which is more or less irrelevant in this particular context – their ascribed sexual orientation. There has to be an element of private choice in sexual orientation, it cannot be ascribed to an individual by courts or administrative agencies. In other words, the price of escaping the box of gender, is to be boxed in another legal category applied almost by default – that of same-sex marriage. The dissenters in fact alluded to this aspect, when suggesting that the applicant’s situation was different from that of homosexual couples, and that therefore her relationship should have been treated differently:
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.
Ultimately, this judgment is another confirmation of the Court’s bias toward schematic and traditional family units, typically formed of (different-sex) couples and their minor children (for criticism of a recent judgment that also exemplifies this approach see HERE). The applicant’s relationship should qualify for equal protection not by virtue of the actual or presumed sexual orientation of the spouses assigned randomly by a court - whether homosexual, or heterosexual, or other -, but because it is a long, stable, loving relationship, not different in any relevant respects to that of any other married couple.
One final point. Some people expressed regret that Finland, of all countries where forced divorce is an issue, was the jurisdiction producing the case that made it to the Grand Chamber. Other countries, lacking the fall back option of registered partnership and the streamlined procedures that are available in Finland, would have been better candidates for a test case litigated at this level. Leaving aside the fact that strategic litigation includes a fair amount of opportunism, and that we did not really have a choice of countries to start with, I suggest somewhat counter-intuitively, that Finland was exactly the country that we needed, as it encapsulates neatly the essence of the demands made by trans people in the applicant’s position. This category of claimants usually want nothing short than preserving their marriage. To the extent that the case was brought against say, Italy, we could expect at most a finding of a violation of Article 8 on account of the absence of alternatives less restrictive than the dissolution of marriage. Although this would be a positive outcome in that it would benefit same-sex couples, it would arguably still feel like a loss to partners in a transgender marriage, who would still have to give up their marriage as a prerequisite to legal gender recognition. In all likelihood, many couples would relinquish or postpone indefinitely gender recognition and continue their existence as de facto same-sex married couples. They would thus be pushed to inhabit a grey area of legality, appearing as married same-sex couples in countries prohibiting same sex marriages, whereas the trans spouse would identify publicly in their self identified gender, even if it would still not be recognised under the law.
Conclusion
Ultimately, the experience of trans rights litigation in the past may suggest that we should better look at Hämäläinen as a necessary step in a broader process of change, just as Christine Goodwin came after a series of disappointing trans rights judgments against the United Kingdom. The particular set-up in the United Kingdom came to define the Court’s jurisprudence on trans issues. As I argued elsewhere, this is now an inadequate framework, for at least two reasons – because of the different realities in countries other than the United Kingdom, particularly from Eastern Europe, and because of developments at the international level, emphasizing the autonomy of the individual to self-identify their gender, free from other requirements such as sterilization or forced divorce. As much as the Hämäläinen majority muddled the waters, the dissenters trailblazed an alternative path to a distinctive treatment of transgender claims in the future, and this may be the best outcome we could have hoped for at this particular moment.