Information Note on the Court’s case-law No. 162
April 2013
H. v. Finland (referral) - 37359/09
Judgment 13.11.2012 [Section IV]
Article 8
Article 8-1
Respect for family life
Respect for private life
Refusal to give applicant female identity number following sex change unless marriage was transformed into civil partnership: case referred to the Grand Chamber
The applicant was born male and married a woman in 1996. The couple had a child in 2002. In 2009 the applicant underwent gender re-assignment surgery. However, although she changed her first names she could not have her identity number changed to a female one unless her wife consented to the transformation of their marriage into a civil partnership or the couple divorced. However, both the applicant and her spouse wished to remain married as a divorce would be against their religious convictions and they considered that a civil partnership did not provide the same security as marriage for them and their child.
In her application to the European Court the applicant complained, inter alia, under Article 8 of the Convention that her right to private and family life had been violated when the full recognition of her new gender was made conditional on the transformation of her marriage into a civil partnership.
In a judgment of 13 November 2012 a Chamber of the Court held unanimously that there had been no violation of Article 8 of the Convention. Article 12 did not impose an obligation on Contracting States to grant same-sex couples access to marriage and Article 8, a provision of more general purpose and scope, could not be interpreted as imposing such an obligation. While the applicant faced daily situations in which the incorrect identity number created inconvenience for her, she had a real possibility to change that state of affairs either, with the consent of her spouse, by turning her marriage into a civil partnership or, if consent was not obtained, by divorcing. It was not disproportionate to require that the applicant’s marriage be turned into a civil partnership as the latter was a real option which provided legal protection for same-sex couples which was almost identical to that of marriage and did not alter the applicant’s rights and obligations arising either from paternity or parenthood. A fair balance had thus been struck between the competing interests at stake. The Court further held unanimously that there had been no violation of Article 14 in conjunction with Article 8 as, firstly, the applicant’s situation was not sufficiently similar to that of non-transgender persons and unmarried transgender persons and, secondly, even assuming it was, since there was no obligation on Contracting States to grant same-sex couples access to marriage, it could not be said that the applicant had been discriminated against vis-à-vis other persons when not being able to obtain a female identity number. There was no need to examine the case under Article 12.
On 29 April 2013 the case was referred to the Grand Chamber at the applicant’s request.
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This summary by the Registry does not bind the Court.
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