CEDH · CASELAW;CLIN;ENG — 16 juillet 2014

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Finland [GC] - 37359/09 Judgment 16.7.2014 [GC] Article 8 Positive obligations Article 8-1 Respect for family life Respect for private life Refusal to give applicant female identity number following sex change unless marriage was transformed into a civil partnership: no violation Facts – Under Finnish law marriage is only permitted between persons of opposite sex. However, while same-sex couples are not permitted to marry, they can contract a civil partnership. The applicant was born a male and married a woman in 1996. The couple had a child in 2002. In 2009 the applicant underwent gender re-assignment surgery. However, although she changed her first names she could not have her identity number changed to a female one unless her wife consented to the transformation of their marriage into a civil partnership or the couple divorced. Both the applicant and her spouse wished to remain married as a divorce would be against their religious convictions and they considered that a civil partnership did not provide the same security as marriage for them and their child. In her application to the European Court the applicant complained, inter alia , 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 civil partnership. In a judgment of 13   November 2012 a Chamber of the Court held unanimously that there had been no violation of Article   8 of the Convention and no violation of Article   14 in conjunction with Article   8 (see Information Note   162 ). Law – Article 8: The question to be determined by the Court was whether respect for the applicant’s private and family life entailed 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 Court reiterated that the Convention did not impose an obligation on the Contracting States to allow same-sex marriage. The regulation of the effects of a change of gender in the context of marriage fell to a large extent, though not entirely, within the margin of appreciation of the Contracting States. Furthermore, the Convention did not require that any further special arrangements be put in place for situations such as the applicant’s. The Grand Chamber also noted that there was still no European consensus on allowing same-sex marriages and no consensus in those States which did not allow same-sex marriages as to how to deal with gender recognition in the case of a pre-existing marriage (the situation in the applicant’s case). Indeed, the majority of the States did not have any kind of legislation on gender recognition in place. In the absence of a consensus, and given the sensitive moral and ethical issues at stake, Finland had to be afforded a wide margin of appreciation, both as to its decision whether or not to enact legislation concerning legal recognition of the new gender of post-operative transsexuals and, having intervened, to the rules laid down in order to achieve a balance between the competing public and private interests. Finnish law provided the applicant with three options. Leaving aside the options of maintaining the status quo or divorcing, the applicant’s complaint was primarily directed at the possibility of converting the marriage into a civil partnership, with the consent of her wife. According to the Government, the aim of the relevant legislation was to unify the varying practices applied in different parts of the country and to establish coherent requirements for legal gender recognition. If the spouse’s consent was received, it provided both for legal recognition of the new gender and legal protection of the relationship. The Court found that since the conversion of the marriage into a civil partnership was automatic under the Finnish system the spouse’s consent to registration of the change of gender was an elementary requirement designed to protect each spouse from the effect of unilateral decisions taken by the other. Moreover, the applicant and her wife would not lose any other rights if their marriage were converted into a registered partnership. Thus, for example, for the purposes of assessing pension rights, the length of the relationship would be calculated from the date of the marriage, not from the date of its conversion into a civil partnership. Turning to the family-life aspects of the case, the Court observed that the civil partnership would not affect the paternity of the applicant’s daughter as it had already been validly established during the marriage. Nor did the gender reassignment have any legal effects on the responsibility for the care, custody, or maintenance of the child, as responsibility in Finland was based on parenthood, irrespective of sex or form of partnership. Consequently, the change to a civil partnership would have no implications for the applicant’s family life. While it was regrettable that she was inconvenienced on a daily basis by her incorrect identity number, the applicant had a genuine possibility of changing that state of affairs via the conversion, at any time, of her marriage into a registered partnership with the consent of her spouse. In the Court’s view, 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. The minor differences between these two legal concepts were not capable of rendering the Finnish system deficient from the point of view of the State’s positive obligation. The system as a whole was not disproportionate in its effects on the applicant and a fair balance had been struck between the competing interests in the case. Conclusion : no violation (fourteen votes to three). The Grand Chamber also found, by fourteen votes to three, that there had been no violation of Article   14 take in conjunction with Article   8 and, unanimously, that it was unnecessary to examine the applicant’s complaint under Article   12 as it had already been examined under Article   8.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes