CASE OF HÄMÄLÄINEN v. FINLAND
No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life);No violation of Article 14+12 - Prohibition of discrimination (Article 14 - Discrimination) (Article 12 - Men and women;Right to marry)
András Sajó;André Potocki;Dean Spielmann;Erik Møse;George Nicolaou;Guido Raimondi;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Josep Casadevall;Khanlar Hajiyev;Lech Garlicki;Ledi Bianku;Linos-Alexandre Sicilianos;Luzius Wildhaber;Mark Villiger;Nebojša Vučinić;Päivi Hirvelä;Paul Lemmens;Paul Martens;Vincent A. De Gaetano;Zdravka Kalaydjieva
9. The applicant was born in 1963 and lives in Helsinki. 10. 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. 11. The applicant started feeling worse in 2004, and decided in 2005 to seek medical help. In April 2006 she was diagnosed as a transsexual. Since that time, she has lived as a woman. On 29 September 2009 she underwent gender reassignment surgery. 12. 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. 13. On 12 June 2007 the applicant requested the local registry office (maistraatti, magistraten) to confirm her status as female and to change her male identity number to a female one as it no longer corresponded to the actual reality. 14. On 19 June 2007 the local registry office refused the applicant’s request. It found that, under sections 1 and 2 of the Transsexuals (Confirmation of Gender) Act (laki transseksuaalin sukupuolen vahvistamisesta, lagen om fastställande av transsexuella personers könstillhörighet), confirmation of such status required that the person was not married or that the spouse gave his or her consent (see paragraph 29 below). As the applicant’s wife had not given her consent to the transformation of their marriage into a registered partnership (rekisteröity parisuhde, registrerat partnerskap), the applicant’s new gender could not be recorded in the population register. 15. On 6 July 2007 the applicant instituted proceedings in the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) complaining, inter alia, that her wife’s decision not to give her consent, which she was perfectly entitled to withhold as they both preferred to remain married, meant that the applicant could not be registered as female. A divorce would be against their religious convictions. A registered partnership did not provide the same security as marriage and would mean, among other things, that their child would be placed in a different situation from children born within wedlock. 16. On 5 May 2008 the Helsinki Administrative Court dismissed the applicant’s complaint on the same grounds as the local registry 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 the possibility, by registering their relationship, to benefit from family-law protection in a manner partially comparable to marriage. Similarly, sections 1 and 2 of the Transsexuals (Confirmation of Gender) Act did not violate the constitutional rights of the applicant’s child. 17. On 8 May 2008 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-domstolen), reiterating the grounds submitted before the local registry 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 registered partnership was appropriate for her, especially when this required that her wife become a lesbian. Their sexual identity was a private matter which could not be a condition for 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 that she was a transsexual. Moreover, she claimed that if her marriage were turned into a registered partnership, it would mean that she could no longer be a legal father to her child and could not be her mother either, as a child could not have two mothers. 18. On 3 February 2009 the Supreme Administrative Court refused the applicant’s request to apply for a preliminary ruling and dismissed her appeal. It found that by enacting the Transsexuals (Confirmation of Gender) Act the legislature had not intended 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 of Human Rights had found, under Article 12 of the Convention, that there were no acceptable grounds for denying transsexuals the right to marry but that the margin of appreciation in this respect was wide. It was not possible under Finnish law for persons of the same sex to marry, but in such a case they could enter into a registered partnership. As to its legal and economic consequences, a registered partnership was essentially comparable to marriage. The question of transforming the institution of marriage into a gender-neutral one brought significant ethical and religious values into play and required the enactment of an Act of Parliament. The current state of the law was within the margin of appreciation given to the State by the European Convention. 19. On 29 October 2009 the applicant lodged an extraordinary appeal with the Supreme Administrative Court, requesting it to overturn 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 on account of her gender. 20. On 18 August 2010 the Supreme Administrative Court dismissed the extraordinary appeal. 21. On an unspecified date the applicant also lodged a complaint with the Ombudsman for Equality (Tasa-arvovaltuutettu, Jämställdhets-ombudsmannen), complaining, inter alia, that she had the wrong identity number. 22. 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.