H v Finland
Forum: European Court of Human Rights
INTERIGHTS role: Representative
Keywords: Equality, Discrimination, Sex; Family life; Gender identity; Marriage
Case update May
The case has been referred to the Grand Chamber of the European Court of Human Rights.
The applicant in this case is a transgender woman. She has been assigned the male sex at birth, but in 2006 she was diagnosed as a transgender. She underwent gender reassignment surgery and started living as a woman. The applicant has been happily married to her wife since 1996, with whom she had a child. Although the applicant was able to change her first name to a female name, her personal documents continue to identify her as male. In 2007, the applicant filed a request before domestic courts to have this information changed in order to reflect her self-identified gender identity as a woman. This request was rejected on the grounds that legislation in force made legal gender recognition of a married person contingent on them first obtaining a divorce. The applicant turned to the European Court of Human Rights, arguing that the compulsory divorce requirement in Finnish law was in breach of her rights under the Convention. On 13 November 2012 the Court declared the complaint admissible, but rejected it on the merits.
On 13 February 2013, the applicant, represented by INTERIGHTS, filed a request that the case be referred to the Grand Chamber of the European Court. In her request, the applicant argued that the judgment of the Chamber was flawed in a number of fundamental respects. First, the Chamber erred in construing the case as one concerning same-sex marriage when in fact the main issue is the applicant’s quest to live in accordance with her self-identified gender identity. Second, the Chamber did not give sufficient weight to the applicant’s family rights, in accordance with clear and settled jurisprudence. Third, the Chamber did not attach sufficient significance to the fact that compulsory divorce legislation in Finland forced the applicant to choose between two fundamental rights – the right to marriage and the right to legal gender recognition. Finally, the Chamber offered a contradictory interpretation of Article 12 which, it decided, applied and did not apply to the case at the same time.
Judgment (13 November )
Request for referral
H. v Finland: transgender persons as collateral victims of prejudice against same-sex marriage on the ECHR Sexual Orientation Blog (4 March 2013)
INTERIGHTS contact: Constantin Cojocariu