News & Events
You are here: Home » News & Events
17 JUL 2014
TENI Statement on Hämäläinen v Finland case
Yesterday the Grand Chamber of the European Court of Human Rights issued its verdict in Hämäläinen v Finland (application no. 37359/09), a case pertaining to the necessity for a married trans person to end their marriage before being legally recognized in one’s gender identity.
The court found that in the Finnish system this requirement does not constitute ‘forced divorce’ as there is an existing conversion procedure that allows marriages to be redesignated as civil partnerships, and in Finland there is not sufficient difference between marriage and civil partnership.
The outcome of this case is certainly disappointing for global trans rights. However, it's application in the Irish context is severely limited.
Finnish law currently provides its citizens with several options that the Irish system does not. Most notably, in the Finnish system there is the possibility to convert an existing marriage into a civil partnership, where both parties consent to this change. This is not an option under Irish law.
In Ireland there is strict legislation pertaining to divorce that would not allow for a trans person to simply convert their marriage to a civil partnership. This facility does not exist. Rather, happily married trans people would need to live separately for 4 out of 5 years and if their relationship was not "irreconcilable" they would need to perjure themselves before a court to obtain a divorce. This is not a viable situation. The Government is currently proposing legislation that would require an individual to be single before applying for gender recognition. This would effectively force divorce on happily married trans people. It also forces trans people in Ireland to choose between their families and their right to be recognised.
Furthermore, in Finland there is not a sufficient difference between civil partnership and marriage. In the judgment, the court described marriage and civil partnership in Finland as ‘almost identical’. However, in Ireland this is again not the case. Marriage is given special protection in the Irish constitution and there are over 160 statutory differences between marriage and civil partnership.
While the European Court of Human Rights held that Finland provided options for the applicant that fell within the country's "margin of appreciation," given Ireland's constitutional protection of marriage and strict divorce law, an Irish case would likely be seen quite differently at the European Court of Human Rights.
Shortcut http://www.teni.ie/teni_statement_on_hämäläinen_v_finland_case