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June 22, 2017 8:22 pm

ECHR Rules Forced Divorce Is Legal

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In a shocking blow to transgender rights across Europe, the European Court of Human Rights in Strasbourg yesterday ruled that forcing transgender people to divorce before their legal gender is changed is legal in countries where equal marriage laws are not available.

The ECHR ruled that the State's preservation of traditional marriage trumps individual rights.

The ECHR ruled that the State’s preservation of traditional marriage trumps individual rights.

The ruling comes in the case of  Hämäläinen v. Finland (Application no. 37359/09), a case Ms Hämäläinen was fighting due to Finish law’s requirement that she either divorce or see her marriage converted into a Registered Partnership (the Finnish equivalent of the UK’s Civil Partnerships, albeit with less rights).

This is a comparable stance to the majority of European countries that recognise a legal change of gender; with only Austria, Germany and Switzerland allowing a legal change of gender without a divorce or conversion of the marriage to a same-sex partnership.

Conversion of a marriage into a Registered Partnership requires the consent of the spouse who is not undergoing a legal gender change; an equivalent of the UK’s Spousal Veto. Ms Hämäläinen’s partner refused to give consent to the conversion on the grounds that the couples’ religion required that they remain married, so the registry office refused to recognise Ms Hämäläinen’s change of legal gender.

The Court noted that the case raised the specific question of the competing rights of the State and the individual with regard to marriage and change of gender, noting “there were two competing rights which needed to be balanced against each other, namely, the applicant’s right to respect for her private life by obtaining a new female identity number and the State’s interest in maintaining the traditional institution of marriage intact.”

The deliberations leading to yesterday’s decision will be of note to transgender activists who are fighting the Spousal Veto, as the Court also stated its belief that “it was not disproportionate to require that the spouse gave consent to such a change as her rights were also at stake.”

The Court ruled by 14 votes to 3 that there was no violation of Article 14 of the European Convention on Human Rights, having stated that requiring transgender people to either divorce or gain their partner’s consent to convert their marriage to a partnership provided “almost identical… legal protection” with “only minor differences”. This is clearly a blow for transgender rights in Europe, especially in activism surrounding the Spousal Veto in all its forms.

It should be noted that although the Court regarded the difference between a marriage and a partnership in Finnish law as “minor”, Finland’s limitations on Registered Partnerships are substantial. In Finland, a registered partnership does not provide automatic recognition of a change of surname and registered partners could not adopt step-children until 2009. Full joint adoption of children by registered partners is still outlawed.

The ruling has been poorly received by transgender activists across Europe. In a press release issued yesterday, Transgender Europe stated it found the ruling regrettable as “it means for trans people to give up one human right in exchange for another: the right to be and remain married versus the right to obtain legal gender recognition.”

The full text of the case is available from the Transgender Europe website.

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