Forcing Trans Woman's Finnish Divorce Upheld
(CN) - The European Court of Human Rights saw no violation in forcing a transgender Finnish woman to either divorce her wife or obtain legal recognition of her female identity.
When she married in 1996, Finnish citizen Heli Hamalainen had not yet transitioned to her life as a woman, but she said that she always privately identified as female. The couple had a child six years into their marriage, and Hamalainen sought medical attention shortly after that.
Diagnosed with gender dysphoria in 2006, Hamalainen underwent sex-reassignment surgery three years later.
Since Finland does not recognize same-sex marriage, however, it refused to let Hamalainen change how her gender appeared on the registry unless her wife agreed to change their marriage into a registered partnership.
The couple, who are both practicing Christians, said that the request violated their religious beliefs and brought their case to Europe's human rights court after they exhausted their appeals.
A large majority of the 17-judge court sided with Finland on Wednesday.
"While it was true that the applicant faced daily situations in which the incorrect identity number created inconvenience for her, the chamber considered that the applicant had a genuine possibility to change that state of affairs: her marriage could be turned at any time, ex lege, into a registered partnership with the consent of her spouse," the 28-page opinion states. "If no such consent was obtained, the applicant had the possibility to divorce."
The Strasbourg-based majority did cite an example of the "profound implications for her daily life" stemming from Hamalainen's inability to change her state registry.
"When she travelled on her current passport, she was forced to buy airline tickets with the title 'Mr.,'" the panel wrote. "Her appearance with female characteristics at the airport, carrying a passport which stated her gender as male, had inevitably led to intrusive questioning, delays, embarrassment and distress."
Absent a "European consensus" on the issues that the case raises, however, the majority declined to intervene.
Only 10 European countries recognize sex-sex marriage and 24 states have "no clear legal framework" on transgender marriage rights or registry protocols, according to the opinion.
A trio of judges blasted what they called the "so-called European consensus," in a seven-page dissent.
This approach will draw criticism that court yielded to a "lowest common denominator," the dissenters warned.
"We believe that it is highly problematic to pit two human rights - in this case, the right to recognition of one's gender identity and the right to maintain one's civil status - against each other," the dissent states.
The dissenters also chided the majority for treating state recognition of Hamalainen's gender identity as "a minor inconvenience arising from a formality."
The denial means Hamalainen must "reveal an aspect of her personality belonging to her most intimate sphere - every time the discrepancy between her gender presentation and her identity card has to be explained," the dissent states. "We believe that this amounts to more than a regrettable 'inconvenience.'"
The co-chair of Finland's chapter of Transgender Europe, an advocacy group that intervened in support of Hamalainen, lamented the ruling.
"Our thoughts are today with Heli Hamalainen and her family," Arja Voipio said in a statement. "The court decided that their rights as a family are inferior to a narrow minded opinion about what a family and marriage should look like. The verdict shows that transgender issues at stake are still not properly understood."
Amnesty International also intervened on Hamalainen's behalf.