JICL

Connect
VOLUME
2:1
JUNE 2015
326-559
  • Confirming (the Illusion of) Heterosexual Marriage:
    Hmlinen v Finland

    Damian A Gonzalez Salzberg
Abstract

On 16 July 2014, the European Court of Human Rights sitting as a Grand Chamber issued its most recent ruling regarding transsexuality and marriage. The question before the Court was whether a transsexual woman, who had married another woman before her gender transition, had the right to obtain full legal recognition of her gender without putting an end to their marriage. The answer given by the Court was not only a rejection of the applicant’s claim; it was also a decision that called into question the Court’s own conception of heterosexual marriage.

Keywords
transsexuality; gender transition; heterosexuality; same-sex marriage; European Court of Human Rights; Hämäläinen v Finland.
Click here to read extracts of the article
Introduction

The relevance the law attributes to individuals’ gender and sexuality continues to give rise to interesting cases in the area of human rights. On 16 July 2014, the Grand Chamber of the European Court of Human Rights rendered its judgment in Hämäläinen v Finland, a case with important implications for LGBT rights. The issue before the Court was whether a transsexual woman, who had married another woman before her gender transition, had the right to obtain full legal recognition of her gender without putting an end to their marriage. The applicant complained that having to choose between obtaining full recognition of her gender and the preservation of her marriage was a violation of her rights under the European Convention on Human Rights. While the Court rejected the applicant’s claim, basing its reasoning on the heterosexuality of marriage, I argue that this judgment offers strong reasons to challenge the Court’s construction of heterosexuality as a coherent idea. This ruling confirmed that the Court continues to validate domestic bans on same-sex marriage. However, the reasoning followed by both the majority ruling and the dissenting opinion showed that the Court’s belief in the heterosexuality of marriage seems to have an important element of belief and only a tenuous connection with the sexuality of the spouses.