On April 29, 2013 the European Court of Human Rights (the Court) decided to refer the case H. v. Finland (N°37359/09) to the Grand Chamber, i.e. the highest formation of the Court, in order to conduct a retrial. This whole affair, which gave rise to a Section’s judgment rendered on November 13, 2012, involves Finland’s refusal to legally recognize the sex change of a person married to someone of a biologically different sex, conditioned on his first obtaining a divorce. In the section judgment, the Court noted “that in essence the problem in the present case is caused by the fact that Finnish law does not allow same-sex marriages.” (§ 66)
The applicant was born male in 1963; however, experiencing the feeling of belonging to the opposite sex, he changed his name in 2006. Even before he underwent a sex change operation in 2009, in 2007 he applied for a new identity number, seeking to indicate in his official documents that he was of the feminine sex. This request was rejected by the public authorities. They based their decision on the fact that it is impossible for two "women" to be married in Finland, and therefore it was appropriate that the applicant's marriage first be dissolved. The applicant refused to conform to this formality and since the Finnish administrative courts have upheld the decision of the public authority, the applicant has subsequently decided to bring the case before the European Court of Human Rights, hoping to obtain Finland’s condemnation. In his eyes, the obligation to first divorce his wife, or to transform his marriage into a civil partnership, before being accorded full recognition of his new gender was a violation of his rights, in particular those derived from Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination).
In a judgment on November 13, 2012, the Fourth Section of the Court unanimously rejected the application. The Court certainly considered that Finland’s refusal to grant full legal recognition to the applicant’s gender constituted an interference with his right to respect for one’s private and family life; however, it found that the interference was justified under the circumstances, due to the fact that Finland does not allow marriage between persons of the same sex (§ 49). The Section added that it was not disproportionate for Finland to have required the applicant to transform his prior marriage into a civil partnership or, should his wife refuse, to dissolve his marriage by divorce (§ 50).
As to the alleged violation of the principle of non-discrimination (art. 14), the applicant has not obtained any more success. The Section found that the situation of the applicant is not sufficiently similar in order to be compared with the situation of any other person, including non-transgender persons and unmarried transgender persons. The applicant cannot therefore has not established being a victim of discrimination compared to other groups of people in similar situations (§ 65).
The Section is following in the wake of the decision on July 11, 2002, of Goodwin v. United Kingdom (No. 28957/95) and of more recent decisions (judgments of 12 June 2003, Van Kück v. Germany, May 23, 2006, Grant v. UK and September 11, 2007, L. v. Lithuania), which considered that the desire of a person to obtain, from the public authorities, the legal recognition of a sex change is within their right to respect for private life, as guaranteed by Article 8 of the Convention, and that one may not be deprived of that right except for justified and proportionate reasons. In the famous Goodwin judgment, the Court also held that the right to marry guaranteed by Article 12 of the Convention, should also be recognized for couples biologically of the same sex, where one member is transsexual. In recognition of this right, the Grand Chamber "[was] not persuaded that at the date of this case it can still be assumed that these terms [man and woman] must refer to a determination of gender by purely biological criteria "(§ 100). Therefore, in this way it has extended the right of marriage to "transgender couples" by, on the one hand, endorsing that social sex is grander than biological sex and, on the other hand, by making the "right to marry" the independent right of starting a family. A similar case is pending against Malta (Cassar v. Malta, No. 36982/11).
Moreover, this is a continuation of the judgment Schalk and Kopf v. Austria of June 24, 2010 (No. 30141/04). In that case the Section recalled that neither the Convention in general nor Article 12 in particular, could be interpreted as constraining the State members to legalize gay marriage. In other words, according to the Court, although an increasing number of State Parties, the most recent being France, opened marriage to same-sex couples, countries reserving marriage for couples constituted of a man and a woman cannot incur condemnation on account of this reservation alone.
The Section case H. v. Finland has applied the jurisprudence emerging from the case law Schalk and Kopf and Goodwin and which, moreover, has been unanimously adopted. Thus, it is surprising that the case was referred to the Grand Chamber.
It is not clear what "serious question affecting the interpretation or application of the Convention or the Protocols there to" or further what "serious issue of general importance" is raised by this case and the judgment of November 13, 2012. The existence of a serious question such as this could alone justify a referral (art. 43 of the ECHR).
The decision of a referral is less surprising when considered from a non-legal point of view, because this type of case benefits from the particular attention of judges desiring the development of "LGBT rights." Perhaps they think that the time has come to establish a new right and to reverse the precedent of the Court? This was already the case in July 2002 with the Goodwin v. The United Kingdom case, which was also related to the right to marriage for transgender people.
In the present case, it is under article 14 that the Grand Chamber could act, in relying on the recent case X and others v. Austria (GC, 19 February 2013, n° 19010/07 see here my comments). Indeed, in this case the Court held comparable with one another, with regard to the right to adoption, situations of same-sex couples and different-sex couples. As a result, she considered that a difference of treatment resulting from the recognition by law of the sexual composition of couples is based on their sexual orientation.
In this Finnish case, the Grand Chamber could, following the X case and against the ruling of this section, consider the situation of the applicant similar to that of non-transsexual married couple. Finland would then have the difficult task of proving that the difference of treatment between these similar situations is not based solely on the sexual orientation of the applicant, or that objective and reasonable grounds of a particular gravity justify it. (Karner vs. Austria, 22 January 2008, n° 40016/98, § 37).
In the current context of the internal division of the Court on social issues, the outcome of this judgment unfortunately depends to a large extent on the composition of the Grand Chamber.
More generally, the case H. v. Finland is an illustration of the difficulties resulting from the acceptance of a double definition of sex: The objective definition which considers the biological sex, and the subjective definition, which considers the social sex. The question that arises is how to determine which of these definitions in order of priority informs the law. And even more so, when the law decides to build upon a “social sex” in order to establish a “legal sex,” different from biological sex, how far will this legal fiction produce effects? And what will become of the rights acquired under the title of biological sex?
This difficulty recalls that the purpose of legal fictions is not to emancipate us from reality, through the law, but the normal function of re-establishing concordance between the law and reality. This is the limit of the use of legal fictions, and the difficulty of the H. v Finland case, because the law can not emancipate itself from reality.