JURIST Guest Columnist Paul Johnson, Anniversary Reader at the University of York, argues that the European Court of Human Rights’ recent decision in H. v. Finland is a predictable and disappointing step taken against the rights of same-sex couples…

The European Court of Human Rights (“the court”) has taken another decisive step in affirming its commitment to not recognizing the right of same-sex couples to marry. In H. v. Finland issued on November 13, 2012, the fourth section of the court unanimously held that a law that would invalidate the marriage of a post-operative transsexual if she registered her new gender identity did not violate any rights guaranteed by the European Convention on Human Rights (“the convention”) [PDF]. The court held the applicant’s complaints under Article 3 and Article 2 of Protocol 4 of the convention were inadmissible, and her complaints under Articles 8, 12 and 14 were not substantiated. The judgment is further evidence that the court will not confront the heteronormative legal arrangements of European states that exclude same-sex couples from contracting civil marriage. Moreover, the judgment grants all 47 states contracted to the convention unlimited discretion (“margin of appreciation”) to exclude same-sex couples from marriage. The judgment should be read in terms of the wide implications it has for LGBT rights and as further evidence of the court’s continuing failure to recognize the full range of LGBT rights available under the convention.

H. v. Finland: Facts and Complaint

The applicant in H. v. Finland is a male-to-female transsexual who, prior to gender reassignment, married a woman with whom he had a child. In 2009, the applicant underwent gender re-assignment surgery and, consequently, changed her first name and renewed her passport and driver’s license. However, the applicant also wished to change her identity number in the population register which officially records an individual’s gender. The applicant found that she was unable to do this because of provisions in the Act on Confirmation of the Gender of a Transsexual. That Act provides at Section 1(3) that a person’s gender can be changed in the population register only if he or she “is not married or in a civil partnership” or, under Section 2, if the person to who they are partnered or married provides their consent. Section 2 of the Act also states:

When belonging to the opposite gender is confirmed, a marriage is turned ex lege into a civil partnership and a civil partnership into a marriage.

This reflects that, under Finnish law, marriage is reserved for opposite-sex couples and civil partnerships for same-sex couples. Following a refusal by her local Register Office to change her identity number and record her gender as female — and because her wife refused to provide the required consent to transform their marriage into a civil partnership — the applicant appealed to the Helsinki Administrative Court. The substance of the appeal was that the applicant’s wife was withholding consent on the grounds that the couple both wished to remain married, that the dissolution of their marriage would be contrary to their religious convictions and that a civil partnership provided both them and their child with fewer legal rights. The Helsinki Administrative Court dismissed the appeal along with the higher Supreme Administrative Court, which also refused the applicant’s request for a preliminary ruling in respect of the convention.

As a result of her failure in the domestic courts, the applicant complained to the court on a number of grounds under the convention. She complained under Article 3 of the convention — which provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment” — that by complicating the changing of her registered gender the Finnish authorities were guilty of torture. She further complained under Article 2 of Protocol 4 — which provides at paragraph 1 that “[e]veryone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence” — that, due to the wrong indication of her gender in her passport, her freedom of movement was compromised. The court deemed both of these complaints inadmissible and engaged in no consideration of them.

The applicant made two further complaints relying on Article 8 taken in conjunction with Article 12, and Article 14, which the court deemed admissible and considered.

The Article 8 and 12 Complaint

In respect of Articles 8 and 12, the applicant complained that her right to private and family life had been violated by the demand that to gain full recognition of her new gender she must transform her marriage into a civil partnership. Article 8 of the convention provides that:

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.

Article 12 provides that “men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

The applicant claimed that the interference in her private and family life created by the requirement that she change her marriage into a civil partnership was unnecessary in a democratic society and that the state had offered no adequate reasons to justify compelling her to do so. The essence of the applicant’s argument was that it is unnecessary to force a married couple to end their marriage in order to protect the privacy of a transgender spouse — a claim advanced, no doubt, because the court has previously held on a number of occasions that a person who is post-operative transgender may claim to be a victim of a breach of his or her right to respect for private life contrary to Article 8 if there is a lack of legal recognition of his or her change of gender.

The Finnish government did not contest that the law created an interference with the applicant’s private and family life but argued that this interference was pursuant to the legitimate aims of protecting the “health and morals” and the “rights and freedoms” of others as specified in Article 8(2) of the convention. The government argued that interference was necessary in a society where only a man and a woman can contract marriage and proportionate because an alternative legal status was available to the applicant. The applicant did not advance a strong Article 12 argument — focusing more on the Article 8 claim — but the Finnish government rejected any Article 12 complaint on the grounds that the legal arrangements for civil partnership were largely similar to those of a marriage and would not, therefore, result in any significant problems for the couple or their child.

The Court’s Judgment of the Article 8 and 12 Complaint

The court’s assessment of the Article 8 and 12 complaint opened with a striking commitment to a heteronormative interpretation of the “right to marry” guaranteed by Article 12. The court stated that Article 12 “secures the fundamental right of a man and woman to marry and to found a family” and “enshrines the traditional concept of marriage as being between a man and a woman.” Although the court noted that some European states have extended marriage to same-sex partners it went on to state that “[t]his reflects their own vision of the role of marriage in their societies and does not flow from an interpretation of the fundamental right as laid down by the Contracting States in the Convention in 1950.”

As I have argued elsewhere, this approach to Article 12 is contrary to the court’s long-standing principle that the convention is a “living instrument” to be “interpreted in the light of present day conditions.” Although the court has previously taken the view of Article 12 it adopted in H. v. Finland in respect of same-sex marriage — most notably in Schalk and Kopf v. Austria — such an interpretation serves only to ossify the convention and limit its evolution. An evolution of the convention is at the heart of the court’s role in administering this “constitutional instrument of European public order in the field of human rights.” The court’s uncritical acceptance and perpetuation of heteronormative marriage — which relies on an unsubstantiated claim about “tradition” — is neither necessary nor inevitable. It is entirely possible for the court, in light of the existence of same-sex families in all contemporary European societies, to read the reference to “men and women” in Article 12 as providing a right to all men and women to marry regardless of their sexual orientation. The convention does not state that men and women only have the right to marry each other. Moreover, the court could read Article 12 in conjunction with Article 1 of the convention, which provides that contracting states “shall secure to everyone within their jurisdiction the rights and freedoms” guaranteed by the convention. However, the court engaged in no such interpretation of the “traditional concept” of marriage.

Because of the court’s approach to Article 12, it was inevitable that the applicant’s Article 8 complaint would fail. In a consideration of Article 8 complaints the court asks three fundamental questions: (1) was any interference with the right in accordance with the law; (2) did it pursue one or more of the legitimate aims set out in Article 8(2); and (3) was it necessary in a democratic society? Any interference will be considered necessary in a democratic society if it addresses a pressing social need and, in doing so, is proportionate and the reasons given to justify it are relevant and sufficient. There was no dispute between the applicant and the state that the interference was in accordance with the law but in respect of whether it pursued a legitimate aim, which the parties did dispute, the court agreed with the government that the interference pursued the legitimate aim of protecting the “health and morals” and the “rights and freedoms” of others. In respect of the necessity of the interference, the court noted that there were:

[T]wo competing rights which need 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 to maintain the traditional institution of marriage intact.

In approaching this consideration of balance, the court invoked its previously stated view that Article 12 does not impose an obligation on a state to grant same-sex couples access to marriage. Furthermore, the court pointed out that the rights of same-sex couples in Finland are protected by the opportunity to register their civil partnership. The court therefore held that it is not disproportionate to require that the spouse give consent to change her marriage into a civil partnership because such a partnership “is a real option which provides legal protection for same-sex couples which is almost identical to that of marriage.” The recognition by the court that the legal rights that flow from civil partnerships are “almost identical” to marriage — and therefore not “equal” to marriage — shows that the court is content to grant contracting states considerable discretion to disadvantage same-sex couples on the sole grounds of the non-heterosexual configurations of their partnerships.

The Article 14 Complaint

Given the clear difference in treatment that is created between opposite and same-sex couples by Finnish law and its affect upon the applicant — requiring her to renounce the legal rights of marriage for the inferior rights of a civil partnership — one may be forgiven for presuming that the applicant would have been protected under Article 14 of the convention. Article 14 provides that:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The applicant complained that the state’s refusal to grant a change in the registration of her gender identity — because she was married and would not renounce her marriage — was discriminatory. The government argued that Article 14 was not applicable but that, should the court deem it relevant, the legal requirement to transform a marriage into a civil partnership was proportionate to meeting the objective of the law (to protect heterosexual marriage).

The Court’s Judgment of the Article 14 Complaint

In its review of Article 14 complaints the court employs a multi-stage approach which involves deciding whether a complaint about differential treatment brought under Article 14 falls within the ambit of another convention right, whether an impugned distinction relates to a ground listed in Article 14 and whether the complainant is in an analogous situation with another person who is treated more favorably. If those “tests” are satisfied the court goes on to consider whether any difference in treatment by a public authority has a reasonable and objective justification. Given the court’s previous jurisprudence in respect of sexual orientation, one could have expected the applicant in H. v. Finland to have succeeded in her Article 14 complaint. For example, the court previously established in Kozak v. Poland that for an Article 14 claim to be successful:

It must be established that there is no objective and reasonable justification for the impugned distinction, which means that it does not pursue a ‘legitimate aim’ or that there is no “reasonable proportionality between the means employed and the aim sought to be realized […]” Furthermore, when the distinction in question operates in this intimate and vulnerable sphere of an individual’s private life, particularly weighty reasons need to be advanced before the Court to justify the measure complained of. Where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is narrow and in such situations the principle of proportionality does not merely require that the measure chosen is in general suited for realising the aim sought but it must also be shown that it was necessary in the circumstances. Indeed, if the reasons advanced for a difference in treatment were based solely on the applicant’s sexual orientation, this would amount to discrimination under the Convention.

Whilst the applicant in H. v. Finland did not explicitly invoke “sexual orientation” as the ground for her difference in treatment, sexual orientation is central to her situation since the domestic law she is contesting requires her to relinquish her marriage in favor of a civil partnership and the sole reason why civil partnerships and marriage are differentiated in Finnish law is sexual orientation. Indeed, the applicant complained that compelling her to enter into a civil partnership “required that her wife become a lesbian.” Yet, although Kozak v. Poland established that a difference in treatment based solely on sexual orientation amounts to discrimination contrary to Article 14 of the convention, this aspect of the court’s jurisprudence is missing from the judgment in H. v. Finland.

Instead, the court invoked other aspects of its Article 14 jurisprudence, stating that, although differences based on sexual orientation require particularly serious reasons by way of justification (Karner v. Austria), a wide margin of appreciation is usually allowed to a state when it comes to “general measures of economic or social strategy” (Stec and Others v. the United Kingdom) and that the scope of the margin will vary according to the circumstances, the subject matter and its background. Given the court’s approach it should have gone on to consider a number of questions, including: (1) how the legal exclusion of same-sex partners from marriage relates to the “economic or social strategy” of Finland; (2) what serious reasons are available to justify this strategy; and (3) how the approach of other contracting states compares to this strategy. However, as is often the case in complaints brought about differential treatment on the grounds of sexual orientation under Article 14, the court did not engage in this consideration of proportionality. Rather, it concluded its review at an earlier stage of analysis — the stage concerning the analogous situation of the applicant. In deciding whether the applicant was in an analogous situation with another class of persons who were receiving more favorable treatment, the court stated:

The applicant is comparing her situation to the situation of any other person, including non-transgender persons and unmarried transgender persons. For the Court these situations are not sufficiently similar in order to be compared to each other. The applicant cannot therefore claim to be in the same situation as the other category of persons relied on.

Because the court would not accept that the applicant was in a comparable position to these other categories of person, it was not required to go on to consider the question of proportionality. Yet the court’s judgment obfuscates on the issue of analogous situation. It does so by invoking “any other person” or “non-transgender persons and unmarried transgender persons” as the comparator group. Yet the only relevant comparison here is between couples in same-sex relationships (like the relationship the applicant is now in with her partner) and couples in opposite-sex relationships (like the relationship the applicant was previously in with her partner). Had the court adopted that more specific comparison at the stage of deciding analogous situation (which was possible within the scope of considering “any other persons”) and accepted it, the court would have then been forced to consider whether the different legal arrangements made available to same and opposite-sex couples for contracting a civil partnership and marriage amounted to discrimination under Article 14 of the convention. Had the court adopted a direct comparison between same and opposite-sex couples it would have been difficult to reach any conclusion other than the difference in treatment created by Finnish law does depend solely on sexual orientation and is therefore discriminatory under the convention.

The court continues to dodge engaging in an analysis of the proportionality of differential treatment by using the question of analogous situation to end its review. A similar approach can be found in the recent judgment in Gas and Dubois v. France. The court adopts this approach to avoid the criticism that would almost certainly follow if it held that same-sex couples and opposite-sex couples are in an analogous situation in respect of their need for the same legal rights pertaining to their relationships, but then found that differences in legal rights on the grounds of sexual orientation did not amount to discrimination under the convention. Indeed, three of the court’s own judges (including its current president) criticized the court for doing exactly this in Schalk and Kopf v. Austria when the court found that same and opposite-sex couples were in an analogous situation but the exclusion of same-sex couples from marriage did not violate rights guaranteed by Article 14:

Having identified a “relevantly similar situation” […], and emphasised that “differences based on sexual orientation require particularly serious reasons by way of justification” […], the Court should have found a violation of Article 14 taken in conjunction with Article 8 of the Convention because the respondent Government did not advance any argument to justify the difference of treatment, relying in this connection mainly on their margin of appreciation […] However, in the absence of any cogent reasons offered by the respondent Government to justify the difference of treatment, there should be no room to apply the margin of appreciation […]Today it is widely recognized and also accepted by society that same sex couples enter into stable relationships. Any absence of a legal framework offering them, at least to a certain extent, the same rights or benefits attached to marriage […] would need robust justification, especially taking into account the growing trend in Europe to offer some means of qualifying for such rights or benefits.

Conclusion: A Problematic Judgment

The judgment in H. v. Finland is both predictable and deeply disappointing. It is disappointing on a number of grounds, but not least because it shows the court again failing to engage in any form of critical analysis of the heteronormative legal arrangements in contracting states which exclude same-sex couples from contracting civil marriage. Invoking “tradition” as the reason to allow the continuation of such discrimination is frankly embarrassing when it forms the basis of the reasoning of the world’s most prestigious human rights court. The court needs to engage, as it has before in respect of other sexual orientation issues (for example, in E.B. v France), in a more subtle and nuanced consideration of heteronormative marriage and question why states should be able to grant this legal right (and the social and cultural benefits that flow from it) to couples solely on the basis of their sexual orientation. The fact that states have excluded same-sex couples from marriage in the past should not be a basis for giving them carte blanche discretion to do so in the future. Even if the court refuses to recognize the rights of same-sex couples to marry under the convention, it should provide detailed and thorough reasons for its judgment.

As it stands, the judgment in H. v. Finland continues a long and problematic tradition of the court rejecting complaints brought by those in same-sex relationships and providing no reasonable explanation for its decision.

Paul Johnson is Anniversary Reader in Sociology at the University of York, UK. His most recent book is Homosexuality and the European Court of Human Rights (Routledge, 2012).

Suggested citation: Paul Johnson, The Impact of H. v. Finland, JURIST – Hotline, November 14, 2012, http://jurist.org/hotline/2012/11/paul-johnson-h-finland.php.