European Court Of Human Rights Deals Blow To Trans Rights And Marriage Equality

Trans people can be forced to terminate marriages in order to legally change their gender, the court held.

The European Court of Human Rights ruled Wednesday that countries could require transsexuals to terminate their marriages in order to get full legal recognition for gender reassignment.

This case was brought by a 51-year-old Finnish citizen, Heli Hämäläinen, who married a woman in 1996 and wished to stayed married to her after having male-to-female gender reassignment surgery in 2009. As Finland does not have marriage equality, Finnish told the couple that they would only grant Hämäläinen’s petition to legally change her gender if the couple divorced or consented to have their marriage converted to a civil partnership.

They refused, saying divorce was against their religious beliefs and that civil partnerships did not provide the same legal protections for them or their child, who was born in 2002. After losing challenges in Finnish courts, they took the fight to the European Court of Human Rights, which has jurisdiction over the 47 states that have agreed to the European Convention on Human Rights including countries outside the European Union like Turkey and Russia. The Finnish decision violated guarantees to rights to marry and have a family as well as protections against discrimination.

The Court rejected these arguments, essentially saying that “the minor differences between” marriage and civil partnership under Finnish law meant that the couple lost no significant protections or rights by converting their marriage. As long as that was an option, the Court stated in a press release explaining the decision, “it was not disproportionate to require such a conversion, as a precondition to legal recognition of an acquired gender, as that was a genuine option which provided legal protection for same-sex couples that was almost identical to that of marriage.”

Hämäläinen responded to the ruling with an open letter on her website, “I will stay married after this judgment. There is nothing on earth that will get us separated. We will not terminate our marriage. We do not call it cis or trans or whatever. It is a religious marriage as I have proven to the court.”

The ruling is not only a blow to the couple, but could have important implications for trans rights and marriage equality movements across Europe. The Italian Constitutional Court ducked a chance to rule in favor of marriage equality last month in a similar case, instead ordering parliament to create “a different form of registered partnership” that is “not the same as marriage” that would also allow trans people to keep legal protections for their unions after undergoing gender reassignment.

Italian activists had hoped they may eventually be able to get a case before the European Court of Human Rights that could push Italy towards marriage equality, and this ruling will likely make that harder. The ruling also signals that the court is unlikely to revisit previous rulings that same-sex couples have no right to marry under European human rights law.

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