Marilyn Stowe Blog

European Court of Human Rights rules on transsexual case

The European Court of Human Rights has ruled that a law which would make the marriage of a post-operative transsexual invalid if she officially registered her new gender did not violate her rights under the European Convention.

In the case of H v Finland, H was a married male-to-female transsexual from Finland who had undergone surgery. She applied to change her official identity number as that records a person’s gender. She was unable to do so, however, as under Finnish law, legal gender can only be changed if the person is either not in a civil partnership or marriage or if their partner or spouse provides consent.

The relevant law also states that:

“When belonging to the opposite gender is confirmed, a marriage is turned ex lege into a civil partnership and a civil partnership into a marriage.”

H’s wife would not consent to transforming their marriage into a civil partnership. The couple wished to remain married as ending the union would be contrary to their religious beliefs and they also believed a civil partnership would provide them and their child with fewer legal rights.

H appealed the refusal to issue her with a new identity number and record her new gender through the Finnish court system but was unsuccessful.

As a result, H appealed to the European Court of Human Rights, claiming that her rights under the Convention had been infringed by the Finnish legal system, including those under article 3 – the right to freedom from torture, and article 2 of protocol 4 – the right to freedom of movement. But the European Court ruled that both these claims were inadmissible.

H also argued that her right to private and family life under article 8, and her right to marriage, under article 12, had been violated by the Finnish courts’ refusal to legally reassign her gender without transforming the marriage into a civil partnership. H also argued the courts had violated article 14, the right of freedom from discrimination.

However, the European Court ruled against H on these issues too. Article 12 referred only to traditional male-female marriages, it said, and her situation did not constitute discrimination.

Photo of Helsinki by Yong Thye under a Creative Commons licence