The European Court of Human Rights has ruled that married trans people living in countries that do not allow same-sex marriage must divorce if they want their new gender to be recognised.
Yesterday, the ECHR told that the divorce requirement for those who wish to change their gender legally does not violate the European Convention on Human Rights, with the court stating, “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”.
One case being debated by judges in Strasbourg was of Finnish national Ms Hämäläinen, who was born into a male body and married a woman, before undergoing gender confirmation surgery in 1996 when she wished to bring her official documents up to date with her new gender. Hämäläinen’s wish was not granted by the local registry office, unless her wife consented to the marriage being turned into a civil partnership, or agreeing to a divorce. Unhappy with the decision, she brought a case in court to the ECHR, stating that the conclusion was in breach of her rights to private and family life (Article 8), her right to marry (Article 12) and a direct violation of Article 14 (prohibition of discrimination). The couple, who have a 12 year-old child, say that due to them both being of Christian faith, divorce is not an option as it goes against their religious beliefs.
Transgender Europe Chair Arja Voipio spoke out, saying “Our thoughts are today with Heli Hämäläinen and her family. The court decided that their rights as a family are inferior to a narrow minded option about what a family and marriage should look like”. She added, “The verdict shows that transgender issues are at stake are still not properly understood”. The requirement to terminate a marriage in order to obtain legal gender recognition is widespread in Europe, with trans people still dealing with the reality in 32 out of 49 countries.
Broden Giambrone, Chief Executive of Transgender Equality Network Ireland (TENI) said, “The outcome of this case is disappointing for global trans rights. However, it’s application to the Irish context is severely limited and should not be misinterpreted as a carte blanche for the Irish Government to legislate forced divorce in this country.
“There are trans people and their families ready to take a legal case if the Government does not remove the single requirement in the proposed legislation. Given the constitutional protection of the family and the onerous divorce requirements these families would have a good chance of winning a legal battle. However, we hope that it will not come to this and that the Irish Government will show leadership on this issue and ensure the rights, privacy and dignity of all families are ensured within the Gender Recognition legislation that is scheduled to be introduced this year.”
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