CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 16 juillet 2014

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FINLAND   (Application no. 37359/09)                     JUDGMENT     STRASBOURG   16 July 2014     In the case of Hämäläinen v. Finland, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Dean Spielmann, President ,   Josep Casadevall,   Guido Raimondi,   Ineta Ziemele,   Mark Villiger,   Isabelle Berro,   Khanlar Hajiyev,   Danutė Jočienė,   Päivi Hirvelä,   András Sajó,   Linos-Alexandre Sicilianos,   Erik Møse,   Helen Keller,   André Potocki,   Paul Lemmens,   Valeriu Griţco,   Faris Vehabović, judges , and Johan Callewaert, Deputy Grand Chamber Registrar , Having deliberated in private on 16 October 2013 and 11 June 2014, Delivers the following judgment, which was adopted on the last- mentioned date: PROCEDURE 1.     The case originated in an application (no. 37359/09) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Ms Heli Maarit Hannele Hämäläinen (“the applicant”), on 8 July 2009. Having originally been designated by the initial H., the applicant subsequently agreed to the disclosure of her name. 2.     The applicant was represented by Mr C. Cojocariu, a lawyer practising in London. The Finnish Government (“the Government”) were represented by their Agent, Mr A. Kosonen, of the Ministry of Foreign Affairs. 3.     The applicant alleged, in particular, under Articles 8 and 14 of the Convention that her right to private and family life had been violated when the full recognition of her new gender was made conditional on the transformation of her marriage into a registered partnership. 4.     The application was allocated to the Fourth Section of the Court (Rule   52 § 1 of the Rules of Court). On 13 November 2012 a Chamber, composed of Lech Garlicki, President, Päivi Hirvelä, George Nicolaou, Ledi Bianku, Zdravka Kalaydjieva, Nebojša Vučinić and Vincent A. De Gaetano, judges, and Lawrence Early, Section Registrar, delivered its judgment. It decided, unanimously, to declare the complaints concerning Articles 8, 12 and 14 of the Convention admissible and the remainder of the application inadmissible, and held that there had been no violation of Article 8 of the Convention, no violation of Article 14 of the Convention taken in conjunction with Article 8, and that there was no need to examine the case under Article 12 of the Convention. 5.     On 13 February 2013 the applicant requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention. A panel of the Grand Chamber accepted the request on 29 April 2013. 6.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. At the final deliberations, Danutė Jočienė continued to sit in the case following the expiry of her term of office (Article 23 § 3 of the Convention and Rule   24   §   4). 7.     The applicant and the Government each filed further observations on the merits (Rule 59 § 1). In addition, third-party comments were received from Amnesty International and Transgender Europe, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). 8.     A hearing took place in public in the Human Rights Building, Strasbourg, on 16 October 2013 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mr   A. Kosonen, Director, Ministry of Foreign Affairs,   Agent , Ms   S. Silvola , Senior Adviser, Ministry of Justice, Ms   M. Faurie , Senior Officer, Ministry of Social Affairs     and Health, Ms   K. Fokin , Legal Officer, Ministry of Foreign Affairs,   Advisers ; (b)     for the applicant Mr   C. Cojocariu , Lawyer, Interights,   Counsel , Ms   V. Vandova , Legal Director, Interights,   Adviser .   The applicant was also present. The Court heard addresses by Mr Kosonen, Mr Cojocariu and Ms   Silvola, as well as their replies to questions put by Judges Hirvelä, Sajó and Lemmens. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 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. A.     Proceedings to have her identity number changed 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 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 in 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 Finnish 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 Helsinki 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 Convention. 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 to the Court of Justice of the European Communities 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 afforded to the State by the Convention. B.     Extraordinary proceedings 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. C.     Other proceedings 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. II.     RELEVANT DOMESTIC LAW A.     The Finnish Constitution 23.     Article 6 of the Finnish Constitution ( Suomen perustuslaki, Finlands grundlag ; Law no. 731/1999) provides as follows. “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 shall be promoted in society and working life, especially in the determination of pay and other terms of employment, as provided for in more detail by an [implementing] Act.” B.     The Marriage Act 24.     Section 1 of the Marriage Act ( avioliittolaki, äktenskapslagen ; Law no.   411/1987) provides that marriage is between a woman and a man. 25.     Section 115 of the same Act (as amended by Law no. 226/2001) provides as follows: “A marriage concluded between a woman and a man in a foreign State before an authority of that State shall be valid in Finland if it is valid in the State in which it was concluded or in a State of which either spouse was a citizen or in which either spouse was habitually resident at the time of conclusion of the marriage.” C.     The Registered Partnerships Act 26.     Under section 1 of the Registered Partnerships Act ( laki rekisteröidystä parisuhteesta, lagen om registrerat partnerskap ; Law no.   950/2001), a partnership between two persons of the same sex and over 18   years of age may be registered as provided by the Act. 27.     Section 8(1) of the same Act provides: “The registration of the partnership shall have the same legal effects as the conclusion of marriage, unless otherwise provided.” D.     The Transsexuals (Confirmation of Gender) Act 28.     Section 1 of the Transsexuals (Confirmation of Gender) Act ( laki transseksuaalin sukupuolen vahvistamisesta, lagen om fastställande av transsexuella personers könstillhörighet ; Law no. 563/2002) provides that it shall be established that a person belongs to the opposite sex to the one noted in the population register if he or she “(1)     provides medical certification that he or she permanently feels that he or she belongs to the opposite gender and lives in the corresponding gender role and that he or she has been sterilised or is for some other reason incapable of reproducing; (2)     is over 18 years of age; (3)     is not married or in a registered partnership; and (4)     is a Finnish citizen or is resident in Finland.” 29.     Section 2 of the Act provides for exceptions from the marital-status requirement. A marriage or registered 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 registry office. Where membership of the opposite sex is confirmed, a marriage is turned automatically, without further action, into a registered partnership and a registered partnership into a marriage. This change is noted in the population register. 30.     The travaux préparatoires of the Transsexuals (Confirmation of Gender) Act (Government Bill HE 56/2001 vp) state, inter alia , that established paternity cannot be annulled solely on the ground that the man has subsequently become a woman. Similarly, a woman who has given birth legally remains the child’s mother even if she subsequently becomes a man. The duties of custody, care and maintenance of a child are primarily based on parenthood. The change of gender of a parent does not therefore affect those rights and obligations. III.     COMPARATIVE LAW 31.     From the information available to the Court, it would appear that ten member States of the Council of Europe permit same-sex marriage (Belgium, Denmark, France, Iceland, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom (England and Wales only)). 32.     It would also appear that twenty-four member States (Albania, Andorra, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Estonia , Georgia, Greece, Latvia, Liechtenstein, Lithuania, Luxembourg, the Republic of Moldova, Monaco, Montenegro, Poland, Romania, Russia, Serbia, Slovakia, Slovenia and the former Yugoslav Republic of Macedonia) have no clear legal framework for legal gender recognition or no legal provisions that specifically deal with the status of married persons who have undergone gender reassignment. The absence of legal regulations in these member States leaves a number of questions unanswered, among which is the fate of a marriage concluded before gender reassignment surgery. In six member States (Italy, Hungary, Ireland, Malta, Turkey and Ukraine) relevant legislation on gender recognition exists. In these States the legislation specifically requires that a person be single or divorced, or there are general provisions in the civil codes or family-law provisions stating that after a change of sex any existing marriage is declared null and void or dissolved. Exceptions allowing a married person to gain legal recognition of his or her acquired gender without having to end a pre-existing marriage exist in only three member States (Austria, Germany and Switzerland). 33.     It would thus appear that, where same-sex marriage is not permitted, only three member States permit an exception which would allow a married person to gain legal recognition of his or her acquired gender without having to end his or her existing marriage. In twenty-four member States the position is rather unclear, given the lack of specific legal regulations in place. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 34.     The applicant complained under Article 8 of the Convention that her right to private and family life had been violated when the full recognition of her new gender was made conditional on the transformation of her marriage into a registered partnership. 35.     Article 8 of the Convention reads as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A.     The Chamber judgment 36.     In its judgment of 13 November 2012, the Chamber found that the facts of the case fell within the ambit of Article 8 of the Convention and within the scope of the concept of “private life”. There had been an interference with the applicant’s right to respect for her private life in that she had not been granted a new female identity number. This interference had a basis in national law, namely, in section 2(1) of the Transsexuals (Confirmation of Gender) Act. The interference was thus “in accordance with the law” and pursued the legitimate aim of protecting “health and morals” and the “rights and freedoms of others”. 37.     As to whether the impugned measures were necessary in a democratic society, the Chamber noted that the applicant and her spouse were lawfully married under domestic law and that they wished to remain married. In domestic law, marriage was only permitted between persons of opposite sex and same-sex marriages were not permitted. The applicant could obtain a new identity number as a woman only if her spouse consented to their marriage being turned into a registered partnership. If no such consent was obtained, the applicant had a choice between remaining married and tolerating the inconvenience caused by the male identity number, or divorcing her spouse. 38.     The Chamber considered that 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. Obtaining the former while remaining married would imply a same-sex marriage between the applicant and her spouse, which was not allowed by the current legislation in force in Finland. The Chamber reiterated that, according to the Court’s case-law, Article 12 of the Convention did not impose an obligation on Contracting States to grant same-sex couples access to marriage. Nor could Article 8, a provision of more general purpose and scope, be interpreted as imposing such an obligation. The Court had also held that the matter of regulating the effects of the change of gender in the context of marriage fell within the appreciation of the Contracting State. 39.     The Chamber noted that consensus on same-sex marriages was evolving in the European context, and that some Council of Europe member States had already included such a possibility in their domestic legislation. In Finland, however, this possibility did not exist, although it was currently being examined by Parliament. On the other hand, the rights of same-sex couples were currently protected by the possibility to register a partnership. 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. If no such consent was obtained, the applicant had the possibility to divorce. 40.     For the Chamber, it was not disproportionate to require that her spouse give consent to such a change as her rights were also at stake. Nor was it disproportionate that the applicant’s marriage be turned into a registered partnership as the latter was a genuine option which provided legal protection for same-sex couples that was almost identical to that of marriage. Moreover, although there was a child from the marriage, there was no suggestion that this child, or any other individual, would be adversely affected if the applicant’s marriage were turned into a registered partnership. The applicant’s rights and obligations arising either from paternity or parenthood would not be altered if her marriage were turned into a registered partnership. The Chamber therefore considered that the effects of the Finnish system had not been shown to be disproportionate and that a fair balance had been struck between the competing interests. There had accordingly been no violation of Article 8 of the Convention. B.     The parties’ submissions 1.     The applicant 41.     The applicant argued that, under the domestic law, she was forced to choose between two fundamental rights recognised under the Convention, namely, her right to sexual self-determination and her right to remain married, with the result that she was effectively compelled to forego one of them. Such legislation placed her in a quandary. She referred in that respect to a judgment of the Federal Constitutional Court of Germany of 27   May 2008. The object of her application was not to extend marriage rights to same-sex couples but only to preserve her pre-existing marriage to her spouse. In her case, same-sex marriage was an unintended and accidental outcome of legal gender recognition. She sought protection of a pre-acquired right and not the presumptive right to marry a woman. 42.     The applicant claimed that there was an interference with both her private life and family life. Following the Court’s line of reasoning in Parry v. the United Kingdom ((dec.), no. 42971/05, ECHR 2006 ‑ XV) and Dadouch v. Malta (no. 38816/07, 20 July 2010), the family-life aspect of the case could not be excluded. The margin of appreciation should be narrower where a particularly important facet of an individual’s existence or identity was at stake. In her submission, the Court should narrow it down even further and move towards removing the divorce requirement in the legal gender recognition context. The margin of appreciation could not extend so far as to allow States to terminate a marriage at their discretion. 43.     The applicant submitted that the divorce requirement imposed by the Transsexuals (Confirmation of Gender) Act was an unnecessary and disproportionate interference with her Article 8 rights. The balancing act carried out by the Chamber had been fundamentally flawed for several reasons. 44.     Firstly, the Chamber had failed to weigh up in the balancing exercise the applicant’s and her wife’s acquired right to be married. If the applicant had chosen legal gender recognition, this would have terminated her marriage either through divorce or by conversion into a registered partnership. Both scenarios involved termination of the marriage. Conversion into a registered partnership was akin to divorce as the consequences of the conversion only applied for the future. As the spouse’s consent was needed, divorce in these circumstances was “forced” by the State. The compulsory termination of the applicant’s marriage would have substantially undermined her rights under the Convention as well as the rights of her spouse and daughter. Such dissolution of a valid marriage would have contradicted the underlying commitment to permanence in marriage, distinguishing it from other relationships. Marriage continued to qualify for the highest degree of protection under Article 8 of the Convention. The applicant and her wife had been married for seventeen years, still lived together and had had a child together. The survival of their relationship, despite the gender reassignment of one spouse, demonstrated a high degree of mutual commitment between the spouses. Important distinctions remained between marriage and a registered partnership: when the female partner in a registered partnership gave birth, both parents did not automatically become parents as in the case of marriage. Nor was adoption possible if neither of the parents was a biological parent of the child to be adopted. The applicant and her family would have lost these rights, which were not insignificant, if they had agreed to enter into a registered partnership. It was also doubtful to what extent the legal parent-child relationship between the applicant and her daughter would have survived as there were no provisions to that effect in the Transsexuals (Confirmation of Gender) Act. The spouses had contracted marriage on the understanding, inspired by their strong religious beliefs, that it would last for life. They were not willing to relinquish their marriage under any circumstances. The applicant’s gender reassignment did not necessarily transform the couple into a homosexual couple. The applicant’s wife, who had entered into the heterosexual relationship seventeen years ago, continued to be heterosexual. Accordingly, the downgrading of the applicant’s relationship to a registered partnership did not reflect the reality of the applicant’s wife’s position. She was forced to make an impossible choice between supporting the applicant or preserving their marriage. Their child’s situation would be similar to that of children born out of wedlock. 45.     Secondly, the applicant claimed that the Chamber had not given sufficient weight to her right to sexual self-determination. The lack of legal recognition of the applicant’s female gender had had profound implications for her daily life. She had effectively been forced to reveal her transsexual condition to complete strangers in daily situations that most people took for granted. For example, the applicant travelled extensively in connection with her job but her passport still indicated that she was a man. When she travelled on her current passport, she was forced to buy airline tickets with the title “Mr”. 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. As Finland had allowed the applicant to change her first names to correspond to her female identity, it was illogical to deny her legal gender recognition at this juncture, thus leaving her stranded in the territory between two sexes for a potentially indeterminate period. The applicant had not chosen to become transsexual and should therefore not be punished by being deprived of her marriage. The express requirement that legal gender recognition was contingent on the termination of marriage did not allow the Finnish courts to make an individualised assessment taking into account the applicant’s circumstances. In Schlumpf v. Switzerland (no. 29002/06, 8 January 2009), the Court had found a violation in similar circumstances. The domestic courts had also failed to consider other alternatives that did not require the termination of marriage. 46.     Thirdly, the applicant argued that the Chamber’s assumption that the State’s interest in protecting marriage would be fatally undermined if transsexuals were allowed to marry was inaccurate. The Chamber had wrongly assumed that the only interest of public value involved in the case was protecting the heterosexual character of marriage. The applicant did not specifically challenge the importance of preserving heterosexual marriage but claimed that forcing her to divorce in order to achieve legal gender recognition was an unnecessary and disproportionate means of achieving the State’s objective. Allowing transsexuals to marry would only marginally affect heterosexual marriage as such cases were extremely rare. De facto or de jure same-sex marriages might already exist in Finland as the marriage of persons in the same situation as the applicant created the appearance of same-sex marriage. Moreover, legal gender recognition obtained in a foreign State was also valid in Finland. 47.     Moreover, the applicant claimed that the Chamber had failed to take due account of the recent international trends towards abandonment of the compulsory divorce requirement, legalisation of same-sex marriage and divorce by free consent. Abandoning compulsory divorce requirements was achieved by either explicitly allowing transsexuals to marry or by legalising same-sex marriage. The applicant referred to comparative-law studies concerning legal gender recognition and marital-status requirements. 48.     In Finland there had also been a trend towards abolishing the compulsory divorce requirement. The Ombudsman for Equality had suggested in 2012 that equal marriage rights for all could be a solution which would allow the continuation of marriage where one spouse was transgender. The Commissioner for Human Rights of the Council of Europe had also called for abolition of the divorce requirement following his visit to Finland in 2012. In that context, the Finnish Government had committed themselves to establishing a working group to examine the possibility of reforming the impugned legislation. There was also a European and international trend towards allowing same-sex marriages. Ten European States currently allowed same-sex marriage. The situation in Finland was also expected to change in the near future. In February 2013 the Parliamentary Law Committee had voted down a draft bill to that effect by a narrow majority of nine votes to eight. Public support for same-sex marriage had also grown from 45% in 2006 to 58% in March 2013. 2.     The Government 49.     The Government agreed with the Chamber’s reasoning and conclusion to the effect that there had been no violation of Article 8 of the Convention in the present case. They noted that the impugned legislation had been passed in order to prevent inequality caused by varying administrative practices throughout the country and in order to set coherent preconditions for legal gender recognition. The bill had initially required that the person requesting legal gender recognition be unmarried or not in a registered partnership and had not allowed his or her marriage or registered partnership to continue in another legally recognised form. This had been seen as unreasonable during the legislative procedure and therefore the conversion mechanism had been introduced into the provision. Since the entry into force of the Transsexuals (Confirmation of Gender) Act, at least fifteen marriages had been turned into registered partnerships and sixteen registered partnerships into marriages. In nine cases the spouses had had children together and in none of these cases had the legal parent-child relationship changed. 50.     The Government noted that the applicant had on many occasions in her observations erroneously referred to compulsory divorce legislation. However, if the spouse’s consent was received, the marriage turned automatically, ex lege , into a registered partnership. The expression “turns into” in section 2 of the Transsexuals (Confirmation of Gender) Act had been explicitly used to illustrate the fact that the legal relationship continued with only a change of title and minor changes to the content of the relationship. This continuity preserved certain derived rights, such as a widower’s pension, and did not create a right or obligation to divide the property between the spouses. The length of the partnership was calculated from the beginning of the relationship, not from the change of title of it. Moreover, the rights and obligations pertaining to parenthood did not depend on the gender of the parent. Consequently, there was no obligatory divorce in Finland but, on the contrary, the possibility of divorcing was at the applicant’s own discretion. Finnish legislation offered the chance to reconcile both the right to sexual self-determination and the right to marry, in the form of a registered partnership. 51.     The Government pointed out that the only differences between marriage and registered partnership appeared in two areas: establishment of paternity on the basis of marriage did not apply to registered partnerships, nor did the provisions of the Adoption Act or the Names Act regarding the family name of the spouse. However, a registered partner could adopt the other partner’s child. Those exceptions were applicable only to those cases in which parenthood had not been established beforehand. Paternity presumed on the basis of marriage or established paternity could not be annulled on the ground that the man later underwent gender reassignment and became a woman. Nor did the father’s gender reassignment have any legal effects on his responsibility for the care, custody or maintenance of a child as such responsibility was based on parenthood, irrespective of sex or form of partnership. The applicant was not even claiming that her legal rights and obligations would be reduced were her marriage turned into a registered partnership, but rather relied on the social and symbolic significance of marriage. The Government stressed that the applicant’s legal rights and obligations vis-à-vis her child arising either from paternity or parenthood would not be altered and the applicant had not produced any evidence to the contrary. Finnish law did not impose compulsory divorce on the applicant, nor annulment or dissolution of marriage. Nor was there any evidence of possible implications for the applicant’s private or family life as she could continue her family life without any interference. 52.     The Government noted that, while the Federal Constitutional Court of Germany, in its judgment of 27 May 2008, had found a similar situation to be unconstitutional, it had left it to the legislature to decide by what means to remedy the situation. According to that court, a marriage could be transformed into a registered civil partnership or a legally secured civil partnership sui generis but the rights acquired by the couple and the duties imposed on them by the marriage had to remain intact. The Finnish provisions were thus in line with the said judgment of the Federal Constitutional Court of Germany. 53.     The Government concluded that there was still no European consensus on allowing a transsexual’s marriage to subsist following post-operative legal gender recognition or on allowing same-sex marriages. Consequently, the State’s margin of appreciation should be wide and it should be able to regulate the effects of the change of gender on pre-existing marriages. 3.     Third-party observations (a)     Amnesty International 54.     Amnesty International noted that all human rights treaties should, as far as possible, be interpreted in harmony in order to give rise to a single set of compatible obligations. It was well-established in international human rights law that the general prohibition of discrimination included a prohibition of discrimination on the ground of sexual orientation. Both gender identity and sexual orientation related to highly subjective notions of self. Often, discrimination based on sexual orientation or gender identity found its expression in relation to family relationships. In the vast majority of those cases, the adjudicating bodies concluded that the States had not put forward reasonable, convincing, objective or weighty arguments to justify discrimination against individuals on the ground of their sexual orientation. Stereotypes constituted a form of discrimination when they resulted in differentiated treatment that nullified or impaired the enjoyment of human rights or fundamental freedoms. Many differences in treatment based on sexual orientation had their roots in stereotypes about gender roles. 55.     Same-sex relationships were gaining legal recognition equal to that of different-sex couples in many jurisdictions but the laws in many countries still made many distinctions. If two individuals in a couple identified as women, they were assumed to be lesbian. This conflation affected a person’s dignity and rights by forcing a gender definition that might not align with the individual’s sense of self. Such conflation was also unnecessary if the law conferred the same status and rights on all couples. States could not impose one particular vision of rights on those who did not share that vision. Traditions and values could not justify a limitation of rights even if these traditions and values were shared by the majority of society. (b)     Transgender Europe 56.     Transgender Europe submitted in its observations comparative information regarding the situation in different Council of Europe member States as far as legal recognition of the new gender of transgender persons was concerned. In some Council of Europe member States transgender persons could not obtain any legal recognition of their gender, while in other member States legal gender recognition was dealt with in a variety of different ways. Some of the member States either allowed same-sex couples to marry or offered the option of a registered partnership. Of the States which offered the option of a registered partnership, some States currently required mandatory termination of marriage while some other States did not. Generally, there was a strong tendency among the Council of Europe member States to review their approach as a result of Recommendation Rec(2010)5 of the Committee of Ministers on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted on 31 March 2010. Most of the new laws, revisions and current political discussions showed that member States took greater account of the right to self-determination of transgender individuals when designing legislation. C.     The Court’s assessment 1.     Applicability of Article 8 of the Convention 57.     In the instant case the applicant formulated her complaint under Article 8 of the Convention and the Government did not dispute the applicability of that provision. 58.     The Court notes that the applicant sought to have her identity number changed from a male to a female one because, having undergone male-to-female gender reassignment surgery, her old male identity number no longer corresponded to the reality. 59.     The Court has held on numerous occasions that a post-operative transsexual may claim to be a victim of a breach of his or her right to respect for private life contrary to Article 8 of the Convention on account of the lack of legal recognition of his or her change of gender (see, for example, Grant v. the United Kingdom , no. 32570/03, § 40, ECHR 2006 ‑ VII, and L. v. Lithuania , no. 27527/03, § 59, ECHR 2007 ‑ IV). In the present case it is not disputed that the applicant’s situation falls within the notion of “private life” within the meaning of Article 8 of the Convention. 60.     The Court notes that the present case also involves issues which may have implications for the applicant’s family life. Under the domestic law, the conversion of the applicant’s existing marriage into a registered partnership requires the consent of her wife. Moreover, the applicant and her wife have a child together. Accordingly, the Court is of the view that the applicant’s relationship with her wife and child also falls within the notion of “family life” within the meaning of Article 8 of the Convention. 61.     Article 8 of the Convention therefore applies to the present case under both its private-life and family-life aspects. 2.     Whether the case involves a positive obligation or an interference 62.     While the essential object of Article 8 is to protect individuals against arbitrary interference by public authorities, it may also impose on a State certain positive obligations to ensure effective respect for the rights protected by Article 8 (see, among other authorities, X and Y v.   the   Netherlands , 26 March 1985, § 23, Series A no. 91, and Söderman v.   Sweden [GC], no. 5786/08, § 78, ECHR 2013). 63.     The Court has previously found that Article 8 imposes on States a positive obligation to secure to their citizens the right to effective respect for their physical and psychological integrity (see, for example, Nitecki v.   Poland (dec.), no. 65653/01 , 21 March 2002; Sentges v. the Netherlands (dec.), no. 27677/02 , 8 July 2003; Odièvre v. France [GC], no. 42326/98, §   42, ECHR 2003 ‑ III; Glass v. the United Kingdom , no. 61827/00 , §§   74 ‑ 83, ECHR 2004 ‑ II; and Pentiacova and Others v. Moldova (dec.), no.   14462/03, ECHR 2005 ‑ I). In addition, this obligation may involve the adoption of specific measures, including the provision of an effective and accessible means of protecting the right to respect for private life (see Airey v.   Ireland , 9 October 1979, § 33, Series A no. 32; McGinley and Egan v. the United Kingdom , 9 June 1998, § 101, Reports of Judgments and Decisions 1998 ‑ III; and Roche v. the United Kingdom [GC], no. 32555/96 , § 162, ECHR 2005 ‑ X). Such measures may include both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights and the implementation, where appropriate, of these measures in different contexts (see A, B and C v. Ireland [GC], no.   25579/05, § 245, ECHR 2010). 64.     The Court observes that it is common ground between the parties that there has been an interference with the applicant’s right to respect for her private life in that she was not granted a new – female – identity number. The Chamber also examined the case from that point of view. The Grand Chamber, however, is of the opinion that the question to be determined by the Court is whether respect for the applicant’s private and family life entails a positive obligation on the State to provide an effective and accessible procedure allowing the applicant to have her new gender legally recognised while remaining married. The Grand Chamber therefore considers it more appropriate to analyse the applicant’s complaint with regard to the positive aspect of Article 8 of the Convention. 3.     General principles applicable to assessing a State’s positive obligations 65.     The principles applicable to assessing a State’s positive and negative obligations under the Convention are similar. Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, the aims in the second paragraph of Article 8 being of a certain relevance (see Gaskin v. the United Kingdom , 7 July 1989, § 42, Series A no. 160, and Roche , cited above, §   157). 66.     The notion of “respect” is not clear cut, especially as far as positive obligations are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 72, ECHR 2002 ‑ VI). Nonetheless, certain factors have been considered relevant for the assessment of the content of those positive obligations on States. Some of them relate to the applicant. They concern the importance of the interest at stake and whether “fundamental values” or “essential aspects” of private life are in issue (see X and Y v. the Netherlands , cited above, § 27, and Gaskin , cited above, § 49), or the impact on an applicant of a discordance between the social reality and the law, the coherence of the administrative and legal practices within the domestic system being regarded as an important factor in the assessment carried out under Article 8 (see B. v. France , 25 March 1992, § 63, Series A no. 232 ‑ C, and Christine Goodwin , cited above, §§   77 ‑ 78). Other factors relate to the impact of the alleged positive obligation at stake on the State concerned. The question here is whether the alleged obligation is narrow and precise or broad and indeterminate (see Botta v.   Italy , 24 February 1998, § 35, Reports 1998 ‑ I), or about the extent of any burden the obligation would impose on the State (see Rees v. the United Kingdom , 17 October 1986, §§ 43-44, Series A no. 106, and Christine Goodwin , cited above, §§ 86-88). 67.     In implementing their positive obligations under Article 8, the States enjoy a certain margin of appreciation.