CASE OF H. v. FINLAND
Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for private life;Article 8 - Right to respect for private and family life)
George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1963 and lives in Helsinki. 6. The applicant was born male. She always felt that she was a female in a male body but decided to cope with the situation. In 1996 she married a woman and in 2002 they had a child. 7. The applicant started feeling worse in 2004, and decided in 2005 to seek medical help. In April 2006 she was diagnosed as transgender. Since that time, she has lived as a woman. On 29 September 2009 she underwent gender re-assignment surgery. 8. On 7 June 2006 the applicant changed her first names and renewed her passport and driver’s licence but she could not have her identity number changed. The identity number still indicates that she is male, as does her passport. 9. On 12 June 2007 the applicant requested the local Register Office (maistraatti, magistraten) to confirm her as being female and to change her male identity number to a female one as it no longer corresponded to reality. 10. On 19 June 2007 the local Register Office refused the applicant’s request. It found that, according to sections 1 and 2 of the Act on Confirmation of the Gender of a Transsexual (laki transseksuaalin sukupuolen vahvistamisesta, lagen om fastställande av transsexuella personers könstillhörighet), the confirmation required that the person was not married or that the spouse gave his or her consent. As the applicant’s wife did not give her consent to the transformation of their marriage into a civil partnership (rekisteröity parisuhde, registrerat partnerskap), the applicant’s new gender could not be introduced in the population register. 11. On 6 July 2007 the applicant appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) complaining, inter alia, that her wife’s decision not to give consent, to which she was perfectly entitled as they both preferred to remain married, meant that the applicant could not be registered as a female. A divorce would be against their religious convictions. A civil partnership did not provide the same security as a marriage and this would mean, among other things, that their child would be put into a different situation vis-à-vis children born within wedlock. 12. On 5 May 2008 the Helsinki Administrative Court rejected the applicant’s appeal on the same grounds as the local Register Office. Moreover it found, inter alia, that the impugned decision of 19 June 2007 was not contrary to Article 6 of the Constitution as same-sex partners had a possibility, by registering their relationship, to benefit from family law protection in a manner partially comparable to a marriage. Similarly, Sections 1 and 2 of the Act on Confirmation of the Gender of a Transsexual did not violate the constitutional rights of the applicant’s child. 13. On 8 May 2008 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-domstolen), reiterating the grounds presented before the local Register Office and the Administrative Court. She also asked the court to make a request for a preliminary ruling to the Court of Justice of the European Communities, in particular on the interpretation of Article 8 of the European Convention on Human Rights. Referring to Articles 8 and 14 of the Convention, the applicant claimed that the State should not tell her that a civil partnership was appropriate for her, especially when it required that her wife become a lesbian. Their sexual identity was a private matter which could not be a condition for the confirmation of gender. Transgenderism was a medical condition falling within the scope of private life. The State was violating her right to privacy every time the male identity number revealed her to be transgender. Moreover, she claimed that if her marriage were turned into a civil partnership, it would mean that she could no longer be a legal father to her child nor his mother, as a child could not have two mothers. 14. On 3 February 2009 the Supreme Administrative Court refused the applicant’s request for a preliminary ruling and rejected her appeal. It found that by adopting the Act on Confirmation of the Gender of a Transsexual the legislator did not mean to change the fact that only a man and a woman could marry and that same-sex partners could have their relationship judicially confirmed by registering it. The European Court had found under Article 12 of the Convention that there were no acceptable grounds to deny transgender persons their right to marry but that the margin of appreciation in this respect was large. It was not possible under Finnish law for persons of the same sex to marry but, in such a case, it was a question of a civil partnership. As to its juridical and economic consequences, a civil partnership was essentially comparable to a marriage. The question of transforming the marriage institution into a gender-neutral one was connected to significant ethical and religious values and it was to be solved by an act enacted by Parliament. The current state of law was within the margin of appreciation given to the State by the European Convention. 15. On 29 October 2009 the applicant lodged an extraordinary appeal with the Supreme Administrative Court, requesting it to annul its previous decision of 3 February 2009. She stated that she had undergone gender reassignment surgery on 29 September 2009 and that she could no longer prove that she had been male, as indicated by her identity number and passport. Even though, for marriage purposes, she would still be considered as male, the fact remained that she should not be discriminated against due to her gender. 16. On 18 August 2010 the Supreme Administrative Court refused the extraordinary appeal. 17. On 29 August 2007 the applicant applied for reimbursement of the costs of some hormonal medicine which was part of her treatment. 18. On 5 October 2007 the Social Insurance Institution (Kansaneläkelaitos, Folkpensionsanstalten) refused her application as she was deemed to be entitled to the reimbursement only once she had been given a new identity number. 19. By letter dated 11 October 2007 the applicant appealed to the Social Security Appeal Board (Sosiaaliturvan muutoksenhakulautakunta, Besvärsnämnden för social trygghet) claiming, inter alia, that she had been discriminated against. 20. On 21 January 2010 the Social Security Appeal Board accepted the applicant’s appeal and changed the decision of 5 October 2007 by the Social Insurance Institution, finding that the applicant was entitled to reimbursement. 21. As no appeal was made against this decision, it became final. 22. On an unspecified date the applicant also filed a complaint with the Ombudsman for Equality (Tasa-arvovaltuutettu, Jämställdhets-ombudsmannen), complaining about the wrong identity number as well as the reimbursement of medical costs. 23. On 30 September 2008 the Ombudsman for Equality stated that she could not take a stand on the identity number issue as the matter had already been dealt with by the Administrative Court and the Ombudsman was not competent to supervise the courts. Moreover, the matter was pending before the Supreme Administrative Court. As to the reimbursement of medical costs, the Ombudsman found that the fact that the reimbursement was conditional on the identity number and not on medical grounds placed transgender persons in a different position to other persons receiving the same treatment. She recommended that the Social Insurance Institution change its practice in this respect in order to prevent discrimination against transgender persons. 24. Article 6 of the Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides the following: “Everyone is equal before the law. No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person. Children shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development. Equality of the sexes is promoted in societal activity and working life, especially in the determination of pay and the other terms of employment, as provided in more detail by an Act.” 25. Section 1 of the Act on Confirmation of the Gender of a Transsexual (laki transseksuaalin sukupuolen vahvistamisesta, lagen om fastställande av transsexuella personers könstillhörighet; Act no. 563/2002) provides that it shall be established that a person belongs to the opposite gender to the one noted in the population register if he or she: “1) provides medical clarifications that he or she permanently feels that he or she belongs to the opposite gender and lives in the corresponding gender role as well as that he or she has been sterilised or is for some other reason incapable of reproducing; 2) is above 18 years of age; 3) is not married or in a civil partnership; and 4) is a Finnish citizen or has residence in Finland.” 26. Section 2 of the same Act provides for exceptions from the marital status requirement. A marriage or a civil partnership does not prevent the confirmation of gender if the spouse or the partner personally gives his or her consent to it before a local Register Office. 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. This modification shall be noted in the population register.