24th Oct 2016

European court strikes down transgender marriage case

  • The judges found that the Finnish state had not acted disproportionately (Photo: Council of Europe)

A Finnish citizen who wanted the state to recognise her new gender after surgery and remain legally married to woman at the same time lost her case at the Strasbourg-based European Court of Human Rights on Wednesday (16 July).

Heil Hamalainen underwent male-to-female gender reassignment surgery in 2009, years after she married her partner.

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But Finnish law does not recognise same-sex marriages.

State authorities said that for Hamalainen to have her new gender recognised, she would need to turn the marriage into a civil partnership or get a divorce - something the couple refused.

They argued that a civil partnership did not offer the same level of protection for their child as a full marriage. They also argued that religious convictions prevented them from seeking a divorce

Hamalainen then took her case to Strasbourg. But the human rights court said the Finnish state had not violated her privacy and family life rights, nor had it committed any act of discrimination.

“The Court found that it was not disproportionate to require the conversion of a marriage into a registered partnership,” it said in a statement.

Berlin-based NGO Transgender Europe says the Court “completely” misunderstood the issue.

“It [the case] is not about same-sex marriage, this case is about protecting existing marriages and the non-interference of the private life,” said Richard Kohler, a senior policy officer at the German NGO.

Not all member states have the same rules.

Transgender couples in Austria and Germany, for instance, can remain married throughout the process of legal gender recognition despite the fact same-sex marriages are not recognised.

According to Transgender Europe, an NGO, 10 EU member states also require transgender people to be sterilised before they can have their new gender officially re-assigned.

“Either it’s in practice or written in law that you first have to undergo surgery or prove that you are sterile in order to be able to change your documents,” said Kohler.

Belgium, Cyprus, the Czech Republic, Finland, France, Greece, Latvia, Luxembourg, Romania and Slovakia have these sterilisation laws.

“Transgender people are the only group in Europe where it is written in law to require such sterilisation,” he added.

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