EIT hyväksyi transseksuaalin avioliiton muuttumisen rekisteröidyksi parisuhteeksi

16.7.2014 | Oikeusuutiset

Markku Fredman

EIT:n suuri jaosto, Hämäläinen v. Suomi: Requiring a change of marital status for a transsexual to be recognised as a woman did not breach her human rights

In today’s Grand Chamber judgment in the case of Hämäläinen v. Finland (application no. 37359/09),
which is final1, the European Court of Human Rights held, by a majority,

  • that there had been no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights;
  • that there was no need to examine the case under Article 12 (right to marry) of the Convention; and,
  • that there had been no violation of Article 14 (prohibition of discrimination) taken in conjunction with Articles 8 and 12.

The case concerned the complaint of a male-to-female transsexual that she could only obtain full official recognition of her new gender by having her marriage turned into a civil partnership.
The Court found that it was not disproportionate to require the conversion of a marriage into a registered partnership as a precondition to legal recognition of an acquired gender as that was a genuine option which provided legal protection for same-sex couples that  was almost identical to that of marriage. The minor differences between these two legal concepts were not capable of rendering the current Finnish system deficient from the point of view of the State’s positive obligation under Article 8. In addition, such a conversion would not have any implications for the applicant’s family life as it would not affect the paternity of the applicant’s daughter or the responsibility for the care, custody, or maintenance of the child.

Principal facts
The applicant, Heli Hämäläinen, is a Finnish national who was born in 1963 and lives in Helsinki. Ms Hämäläinen was born a male and married a woman in 1996. The couple had a child in 2002. In September 2009 Ms Hämäläinen underwent male-to-female gender reassignment surgery. Although she changed her first names in June 2006, she could not have her identity number changed
to indicate her female gender in her official documents unless her wife consented to the marriage being turned into a civil partnership, which she refused to do, or unless the couple divorced. The couple preferred to remain married as a divorce would be against their religious convictions and they considered that a civil partnership did not provide the same security as marriage for them and their child. Ms Hämäläinen’s request to be registered as female at the local registry office was therefore refused.
Ms Hämäläinen brought administrative proceedings before the national courts which, in May 2008 and February 2009, rejected her appeal against the refusal to register her as a female. The courts found in particular that legislation on confirming the gender of transsexuals in Finland did not intend to change the fact that only a man and a woman could currently marry under Finnish law. The Supreme Administrative Court refused her extraordinary appeal in August 2010.

Complaints, procedure and composition of the Court
Ms Hämäläinen complained that making the full recognition of her new gender conditional on the transformation of her marriage into a civil partnership violated her rights under Article 8 (right to respect for private and family life), Article 12 (right to marry) and Article 14 (prohibition of discrimination).
The application was lodged with the European Court of Human Rights on 8 July 2009. In its Chamber judgment of 13 November 2012, the Court held that there had been no violation of Article 8 of the European Convention. It further held that there had been no violation of Article 14 read in conjunction with Article 8 and that there was no need to examine the case under Article 12.
It found in particular that a fair balance had been struck in the Finnish judicial system between, on the one hand, Ms Hämäläinen’s right to respect for her privacy by obtaining a new female identity number and, on the other hand, the State’s interest in keeping intact the traditional institution of marriage. Notably, it was not disproportionate to require the applicant’s marriage to be turned into a civil partnership as it was a real option which provided same-sex couples and their children with almost identical legal protection to that of married couples.
The case was referred to the Grand Chamber of the Court under Article 43 (referral to the Grand Chamber) at the request of the applicant and on 29 April 2013 the panel of the Grand Chamber accepted that request.
Amnesty International and Transgender Europe were authorised to intervene as third parties (under Article 36 § 2 of the Convention) in the written procedure.

Judgment was given by the Grand Chamber of 17 judges, composed as follows:
Dean Spielmann (Luxembourg), President,
Josep Casadevall (Andorra),
Guido Raimondi (Italy),
Ineta Ziemele (Latvia),
Mark Villiger (Liechtenstein),
Isabelle Berro-Lefèvre (Monaco),
Khanlar Hajiyev (Azerbaijan),
Danutė Jočienė (Lithuania),
Päivi Hirvelä (Finland),
András Sajó (Hungary),
Linos-Alexandre Sicilianos (Greece),
Erik Møse (Norway),
Helen Keller (Switzerland),
André Potocki (France),
Paul Lemmens (Belgium),
Valeriu Griţco (the Republic of Moldova),
Faris Vehabović (Bosnia and Herzegovina), judges,

and also Johan Callewaert, Deputy Grand Chamber Registrar.

Ks. video tuomion julistamisesta: Delivery of the judgment,

Ks. kommentti:


Suomi v. Heli Hämäläinen: 14 – 3

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