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Divorce Requirement is interference in Private Life says European Court for Human Rights
13th November 2012
The European Court for Human Rights today issued a verdict in H v Finland (Application no. 37359/09) acknowledging that a required forced divorce constitutes interference into the private life. However, the court ultimately rejected the applicant’s claim that her human rights were violated. The applicant Ms H did not want to accept that her marriage was turned into a registered partnership, as prescribed under Finnish law.
The court found Ms H’s right to private and family life (Art 8), right to marriage (Art 12) and the right to non-discrimination (Art 14) under the European Convention were not violated by the Finnish law on legal gender recognition. Her situation could not be compared to other non-married transgender persons seeking recognition of their gender. While the court confirmed that her private life was interfered, it also accepted that the protection of “health and morals” and the “rights and freedoms” of others, as argued by the government, was legitimate.
In 2006 Ms H changed her first names from male to female. Her request to the Finnish courts to also officially recognize her gender as female was refused as she and her wife were unwilling to get divorced and have their marriage automatically turned into a registered partnership. Being single is a pre-requisite for legal gender recognition in Finland. Ms H complained to the European Court for Human Rights claiming that this requirement would violate her right to private and family life as well as her right to marriage. Both rights are protected under the European Convention on Human Rights.
The verdict could be of relevance to another four European countries with similar set-ups. Czech Republic, France, Hungary, UK and some cantons in Switzerland have registered partnerships while requiring couples to divorce for an official recognition of a trans person’s gender. However, a French court of Appeal in Rennes recently declared that a trans person could not be denied recognition of her gender because of being married. However, the Court stressed that the Finnish civil partnership for same-sex couples has “almost identical” effects as a marriage and that the “rights and obligations arising either from paternity or parenthood would not be altered”.
Forced Divorce in Europe
A total of 24 countries in Europe still requires trans people to be single to or divorce before their gender is legally recognized.
Forced divorce means hardship for many trans people’s families and children. Their protection and gained rights are lost. Many couples do not prefer to turn their previous marriage into a registered partnership as they fear for loosing previously ensured rights for themselves and their relatives.
On top of the emotional burden for the family a divorce procedure is often lengthy and delays the access to new ID documents. Without proper papers trans people are face difficulties in accessing the job market and everyday transactions. Their families and particularly children face legal uncertainty on their rights during and after the legal separation.
Apart from being single, many countries in Europe require additionally forced sterilization and invasive medical surgery; all countries necessitate a mental health diagnosis before granting full legal recognition.
“We all share the immense disappointment the applicant and her family must feel now. Families like Ms H’s deserve protection as any other family. It is not right that her wife and child have to suffer from society’s narrow view on marriage.” comments Arja Voipio, member of the TGEU Executive Board: “On the one side we see here a legalistic view trying to uphold an artificially simple model of marriage and partnership. On the other side, we see individuals with their families seeking protection of their basic human rights.”
“It remains incomprehensible how “health and morals” and “rights and freedoms” of others” could be threatened by the intact family life of Ms H.” says Richard Köhler, TGEU Policy Officer. “However, the court acknowledged that private and family life was affected. It also reiterated that member states have only narrow leeway when setting conditions for recognizing a person’s gender identity. We remain optimistic that excessive conditions trans people are still exposed to will eventually be banned in Europe.
TGEU is Human Rights Organization working for equality and inclusion of trans people in Europe. www.tgeu.org
TGEU Policy & Capacity Officer Richard Köhler is available for further information and comment at: Richard[at]tgeu.org
Photo Credits: Ulrika Westerlund
Verdict H. v. FINLAND (Application no. 37359/09) of the European Court of Human Rights: www.tgeu.org//sites/default/files/Verdict_H_v_FINLAND.pdf
‘Gender Identity’ Case law at the European Court of Human Rights: http://www.echr.coe.int/NR/rdonlyres/6E6BB0DC-A41D-4ADB-94B3-37407490C629/0/FICHES_Identite_genre_EN.pdf
Decision of the Court of Appeal (Rennes, France): http://www.lefigaro.fr/actualite-france/2012/10/16/01016-20121016ARTFIG00600-une-transsexuelle-pourra-rester-mariee.php