Strasbourg ruling: divorce requirement for legal gender recognition ‘no violation of Human Rights’

Yesterday, the European Court of Human Rights (ECtHR) ruled that the divorce requirement for people who wish to change their legal gender and are married, is not a violation of the European Convention on Human Rights.European Court of Human Rights

The Strasbourg based Court analysed the case of Finnish national Ms Hämäläinen, who was born male and married to a woman. After undergoing gender reassignment surgery in 1996, she wished to bring her official documents in line with her new gender.

However, the local registry office refused to register her as female, unless her wife consented to the marriage being turned into a civil partnership or to divorce.

Claiming that this was in breach of Article 8 (Rights to private and family life),  Article 12 (right to marry) and a violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights, Ms Hämäläinen brought the case to the ECtHR, which now ruled that the required change of marital status would not breach her rights.

Explaining its judgment, the Court stated that “it was not disproportionate to require the conversion of a marriage into a registered partnership 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.”

Sirpa Pietikäinen, a Finnish Member of the European Parliament for the EPP reacted to the judgment: “The ruling is a disappointment for those transgender people who wish to stay married throughout the gender recognition process.”

“In 2012, Council of Europe Commissioner for Human Rights Nils Muižnieks said that divorce should not be a necessary condition for gender recognition as it can have a severe impact on the right to family life. In order to guarantee the right to family life for everyone, we need to put more pressure on national authorities to formulate their legislation in a non-discriminatory way.”

Dennis de Jong, Member of the European Parliament for GUE/NGL, added: “The divorce requirement now acknowledged by the Court does have a very negative impact on the family life of transgenders and their partners.”

“Although family law is not a European competence, I call upon Finland and other states for reasons of humanity, to respect the rights of transgender persons and follow the example of the 11 EU Member States which do not require transgender people to divorce in order to have their gender recognised.”