TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Furthermore, the margin of appreciation has to be narrow, where fundamental characteristics of human personhood are at stake, such as their gender identity or their civil status.
AP1 (Applicant): We therefore fully endorse the chamber's approach in this case, which refused to fall back on the margin of appreciation doctrine and instead engaged in a balancing exercise of the rights and interests involved in this case.
AP1 (Applicant): I will now turn to Mrs. Hamelin and its claim
AP1 (Applicant): under Article 12.
AP1 (Applicant): In Johnston and others versus Ireland, this court made it clear that the words right to marry in Article 12 are to be interpreted under their ordinary meaning, in the sense that they cover the formation of marital relationships, but not their dissolution, and that a more expansive meaning could not be deduced on the basis of the doctrine of evolutive interpretation.
AP1 (Applicant): Turning to Mrs. Hamelin's case, the chamber
AP1 (Applicant): appeared to apply this restrictive interpretation, stating clearly that Article 12 only referred to the foundational act of marriage and was not concerned with what happened subsequently to that initial event.
AP1 (Applicant): At the same time, however, the chamber in this case relied on a number of occasions on Article 12 in order to buttress its analysis under Articles 8 and 14.
AP1 (Applicant): In particular, the chamber repeatedly referred to the definition of marriage, included in Article 12, as a union between a man and a woman.
AP1 (Applicant): And also, the chamber mentioned relied on the deference due to national lawmakers to regulate marriage, which is an element of Article 12.
AP1 (Applicant): Similarly, in other legal gender recognitions, such as Perry v. United Kingdom, and Christine Goodwin v. United
AP1 (Applicant): Kingdom, the Court found that Article 12 was applicable in cases concerning the effect of legal gender recognition on existing marriages.
AP1 (Applicant): The chamber, therefore, appeared to suggest in this case that Article 12 applied and did not apply to the same facts at the same time.
AP1 (Applicant): This, we submit, is a manifest contradiction in the way in which the Court interprets Article 12 in relation to the issue of transgender marriage.
AP1 (Applicant): One of the reasons why Mrs. Hamerlein asked for this case
AP1 (Applicant): to be referred to the grand chamber was in order to secure an authoritative interpretation of the suspects of the Court's jurisprudence.
AP1 (Applicant): We respectfully suggest that there are two ways in which this tension may be resolved.
AP1 (Applicant): On the one hand, the Court may opt for a restrictive interpretation of Article 12, which would apply solely to the foundational act of marriage as per the case Johnston v. Allen.
AP1 (Applicant): In this case, Article 12 as a whole would not represent an obstacle to the survival of Mrs.
AP1 (Applicant): Hamerlein's marriage.
AP1 (Applicant): Subsequently to her legal gender recognition, at the time when their marriage was contracted, the applicant and her spouse were a different sex couple.
AP1 (Applicant): It also follows that Article 12 could not be used to inform the interpretation of Article 8 insofar as marriage was defined as a different sex union.
AP1 (Applicant): Article 12 would ultimately have nothing to say on the validity of a marriage where one spouse transitions to a different gender.
AP1 (Applicant): The second possibility, and the one that the applicant is advocating for, is that the Court settled for a cautiously expensive interpretation of Article 12 to cover the continued existence of marriage, at least insofar as the exceptional situation of interferences with transgender marriages is concerned, a unique situation, as I emphasized before.
AP1 (Applicant): In all likelihood, transgender marriages were not an issue that the drafters of the Convention considered when Article 12 was adopted.
AP1 (Applicant): Furthermore, the men and women language need not necessarily prevent the legal recognition of transgender marriages.
AP1 (Applicant): After all, this Court has recognized in Schalk and Kopp v. Austria that as a matter of principle,
AP1 (Applicant): it, I quote, would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite gender, leaving open the possibility of equality of interpretation.
AP1 (Applicant): As the meaning of Article 12 as applied to transgender marriages is not immediately obvious from its wording or its legislative history, we submit that it should be interpreted in the light of the Convention as a whole and in light of the general principles of interpretation employed by the Court.
AP1 (Applicant): Article 8 protecting family life and Article 14 protecting discrimination, including on the basis of gender identity, as well as the principle that the Convention guarantees rights that are practical and effective and not theoretical and illusory, are particularly relevant.
AP1 (Applicant): At the same time, the forced divorce requirement would have to satisfy the Article 12 test involving an examination whether the State regulation forcing the applicant to divorce injures, I quote, the very substance of the right to marry.
AP1 (Applicant): On the basis of these principles and considering the applicable test, the only conclusion that follows in our view is that by ending marriage and the best case scenario, turning it into a registered partnership, the transsexual act in Finland clearly deprives Mrs. Hamalainen of the very substance of her right
AP1 (Applicant): to marry.
AP1 (Applicant): Marriage cannot be possibly deemed to subsist in the guise of a registered partnership.
AP1 (Applicant): The fact that Mrs. Hamalainen would
AP1 (Applicant): be able to marry a male person would be of no consolation to her because she is in an existing marriage with her spouse and would not want to marry somebody else.
AP1 (Applicant): Summing up, regardless of whether Article 12 is interpreted narrowly or more expansively, we submit that the outcome should be the same, in that legislation forcing transgender people to divorce before they can be recognized in their self-identified gender is in breach of the Convention.
AP1 (Applicant): I will now turn to Mrs. Hamalainen's claim
AP1 (Applicant): under Article 14.
AP1 (Applicant): We maintain that she has been discriminated in breach of Article 14 in conjunction with Articles 8 and 12 of the Convention on two grounds, first on the basis of her gender identity as a transgender person, where gender identity is seen as an intrinsic aspect of human personhood, and second on the basis of a medical condition or health status.
AP1 (Applicant): Mrs. Hamalainen submits that she has
AP1 (Applicant): been discriminated on the basis of her gender identity when compared to married, non-transgender individuals.
AP1 (Applicant): Insofar as her right to legal recognition of her gender identity is concerned, she has to comply with the additional requirement of terminating her marriage in order to achieve legal gender recognition.
AP1 (Applicant): At the same time, non-transgender individuals achieve legal recognition of their gender identity automatically at birth, without additional requirements.
AP1 (Applicant): Since Mrs. Hamalainen is not willing to sacrifice
AP1 (Applicant): her marriage, she has to face difficult situations on a daily basis, deriving from the incongruence between the gender inscribed in her personal documents and her appearance, which non-transgender people do not have to face.
AP1 (Applicant): We already argued under Article 8, the Article 8 part of my submission, that protection of marriage may not constitute an objective and reasonable justification for the discriminatory treatment in this case.
AP1 (Applicant): At the same time, Mrs. Hamalainen
AP1 (Applicant): was discriminated insofar as she suffered the automatic threat of forceful termination of her marriage due to experiencing gender identity disorder, a medical condition that, as the Court highlighted, is universally recognized.
AP1 (Applicant): We emphasize that Mrs. Hamalainen is not
AP1 (Applicant): a transsexual by choice, and that, therefore, she should not be punished by depriving her of her marriage.
AP1 (Applicant): This Court has also recognized that the manifest determination to undergo complicated medical treatment associated with gender reassignment demonstrates that there is nothing arbitrary and capricious about a person's decision to undergo such treatment.
AP1 (Applicant): The fact that she has undergone gender reassignment treatment and is asking for legal gender recognition cannot be held against her, and may not, therefore, constitute the ground for differential treatment when compared to married non-transgender couples.
AP1 (Applicant): Non-transgender marriages do not entail the real and serious risk of forced termination, which the marriage of Mrs. Hamalainen entailed due
AP1 (Applicant): to her transgender condition.
AP1 (Applicant): This case is similar to cases such as Kiyutin versus Russia and I.B. versus Greece, decided very recently
AP1 (Applicant): this last one, I.B. versus Greece,
AP1 (Applicant): where HIV-positive individuals lost their permission to reside on the territory of the defendant's state in Kiyutin versus Russia, or respectively, their job in I.B. versus Greece, on account of stereotypes
AP1 (Applicant): associated with their health status.
AP1 (Applicant): In this case, the Finnish authorities conflate two different grounds of discrimination that operate in very different ways, sexual orientation and gender identity, also on the basis of stereotypes.
AP1 (Applicant): The distinction between marriage and registered partnership is based on the sexual orientation of the partners involved.
AP1 (Applicant): This transforms sexual orientation into the defining characteristic of a relationship for the purposes of preferential treatment under the law.
AP1 (Applicant): However, insofar as transgender marriages are concerned, the sexual orientation of the parties is more or less immaterial and somewhat difficult to define.
AP1 (Applicant): The past of Mrs. Hohmein and her spouse
AP1 (Applicant): is clearly heterosexual.
AP1 (Applicant): To the extent that we assume the sexual orientation is an immutable characteristic, they remain so.
AP1 (Applicant): This being so, what could the possible justification be for downgrading the relationship from marriage to registered partnership?
AP1 (Applicant): How justified can it be to elevate sexual orientation to the principal marker of a relationship to the detriment of, as in this case, the fact that the applicant and her spouse had been in a committed, loving, mutually supportive, 17-year-old relationship and that they have a child together?
AP1 (Applicant): The authorities of the respondent state have given priority to a legal presumption over social reality without regard to both established facts and the wishes of those concerned and without clear benefits for anyone.
AP1 (Applicant): Mrs. Hohmein and her spouse's marriage
AP1 (Applicant): has passed the test of life despite all adversities in circumstances where many other relationships would have collapsed.
AP1 (Applicant): Mrs. Hohmein and her spouse have remained committed to each other
AP1 (Applicant): in a loving, mutually supportive, 17-year-long relationship and are determined to stay married until the end of their lives.
AP1 (Applicant): This, we submit, should be the primary consideration in determining the continued legal status of their marriage and not seemingly random, stereotypical views related to their sexual orientation or physiological sexual characteristics.
AP1 (Applicant): Instead of undermining them, the state's mission should be to protect and nurture such a relationship.
AP1 (Applicant): Thank you for your attention.
AP1 (Applicant): And I hope you have a great day.
Dean Spielmann (JudgeP): Thank you, Mr. Cojocariu.
Dean Spielmann (JudgeP): I call Mr. Kosonen.
GR1 (Government): the present case concerns the applicant's request for confirmation of her gender.
GR1 (Government): According to the relevant legislation, namely the 2002 Act on Confirmation of Sex of a Transsexual, it shall be established that a person belongs to the opposite sex if this person inter alia provides the necessary medical clarifications and is not married or in a registered partnership.
GR1 (Government): If a person is married or in a registered partnership, the gender may, however, be confirmed if the spouse or partner, after being informed that as a result of their marriage, turns automatically its liege into a registered partnership or the registered partnership correspondingly to marriage personally at the local registrar's office, gives his or her consent to this.
GR1 (Government): In the present case, the applicant's spouse has not consented to the transformation of their marriage into registered partnership.
GR1 (Government): Also, the applicant herself is unwilling to have the relationship changed.
GR1 (Government): Prior to the said act, there were no provisions in legislation on the preconditions of the confirmation of the new gender.
GR1 (Government): According to the current proposal for the Act 2001, the aim of the proposed legislation was to create a procedure for the confirmation of the new gender.
GR1 (Government): Even though in practice, transgender persons were able to obtain inter alia a new identity number if they were unmarried, but Mr. T's practices varied.
GR1 (Government): Consequently, it was important to enact the legislation that clearly set out the preconditions for the legal gender recognition.
GR1 (Government): Indeed, as your court held in 2002 in Christine Goodwin against the UK judgment, the coherence of the administrative practices within domestic systems must be regarded as an important factor in the assessment carried out under Article 8.
GR1 (Government): The current proposal, taking into account the relevant case law of your court to that date, included a provision on the condition of not being married or in a registered partnership, but did not mention the possibility of continuation of the relationship in another legally recognized form.
GR1 (Government): Then the Parliamentary Legal Affairs Committee in its statement on the said proposal considered that the suggested proposal was appropriate from the viewpoint of the consistency of the regulation of the personal rights enforced at the time, according to which a marriage was a legal relationship between a man and a woman, and registered partnership a legal relationship between same-sex partners.
GR1 (Government): However, according to the committee, the said condition was unreasonable for those already married or in a registered partnership who wanted to continue their relationship, even though their spouse was requesting legal gender recognition.
GR1 (Government): The same approach was taken by the Parliamentary Social Affairs and Health Committee in its report on the said proposal 2002, thereby adding an explicit provision on a marriage, turning upon consent of the spouse automatically into a registered partnership and a registered partnership correspondingly into a marriage.
GR1 (Government): According to the information received from 10 out of a total of 11 local registrar's offices, since the entry into force of the act, at least 15 marriages have been turned into registered partnerships and 16 registered partnerships into marriages.
GR1 (Government): The 2001 Act on registered partnership passed one year earlier provides that the registration of partnership shall have the same legal effects as the conclusion of marriage, unless otherwise provided.
GR1 (Government): According to the government proposal for the said Act 2000, the aim of the Act was to give same-sex couples the possibility to officially recognize their relationship as a legal institution.
GR1 (Government): Marriage would remain an institution between a man and a woman as regulated by the Marriage Act.
GR1 (Government): In the present case, the local registered office, the governmental administrative authority, found in 2007 that even if all the other conditions laid down in the act of confirmation of the sex of a transsexual were fulfilled, the applicant's wife had not given her consent.
GR1 (Government): And consequently, the applicant's new gender could not be introduced in the population register.
GR1 (Government): The administrative court found in 2008 that the case concerned those legal grounds on which applicant's new gender can be confirmed and on which she be given a female identity number.
GR1 (Government): The administrative court noted that same-sex partners have a possibility to benefit from family law protection through registered partnership in a manner partially comparable to marriage, if they so wish.
GR1 (Government): The Supreme Administrative Court found in 2009 that by adopting the said Act, the legislator aimed to maintain marriage as a legal institution between a man and woman while allowing legal gender confirmation by turning marriage into registered partnership by consent of the spouse.
GR1 (Government): The Supreme Administrative Court stated, after thoroughly examining the applicant's request and taking into account inter alia the case law of your court, that when assessing a fair balance between the private life of a transsexual person, on the one hand, and the state's interests and values regarding the notion of family, on the other hand, the current legislation does not go beyond the margin of appreciation left to the state under the convention.
GR1 (Government): The government notes that your court has communicated the present case to the government in respect of Articles 8 and 14 in conjunction with Article 8 and not Article 14 as is not Article in conjunction of Article 12 as argued by the applicant in her new submissions.
GR1 (Government): And ex officio, the chamber, also under Article 12, has declared these complaints admissible.
GR1 (Government): And they are now those articles we are dealing with here.
GR1 (Government): But the applicant has originally complained also under Article 3, prohibition of torture, and under Article 2 of the Protocol Number 4, freedom of movement.
GR1 (Government): No questions regarding these articles were put to the government.
GR1 (Government): And the government notes also that no complaint was introduced by the applicant under Article 9 concerning freedom of thought, conscience, and religion.
GR1 (Government): And the chamber unanimously found that there was no violation of any provisions of the convention.
GR1 (Government): As a general remark, the government, of course, reiterates what has been said earlier in the government's written submissions.
GR1 (Government): The government notes that the applicant stated in her written submission that her object in her application is not to extend marriage rights to same-sex couples.
GR1 (Government): The government notes, as a further remark, that the applicant has referred to several cases of your court in her submissions relating, for instance, to the rights of child, criminalization of homosexuality, religious or philosophical convictions.
GR1 (Government): Some of those references are inaccurate or to have been taken out of context and therefore do not as such apply to the present case.
GR1 (Government): As regards to the violation of Article 8 of the convention, the applicant alleges that the legislation forces her to choose between her right to sexual determination and her right to marriage.
GR1 (Government): However, as the court stated, the applicant has a real possibility to change the state of affairs.
GR1 (Government): Her marriage can be turned at any time ex lege into a single partnership with the consent of the spouse.
GR1 (Government): In this regard, the government wishes to emphasize that the legislation on registered partnerships aims to support the institution of marriage so that the idea of commitment and responsibility enshrined in entering into a marriage is extended to relationships other than those between men and women.
GR1 (Government): This was expressed by the Parliamentary Legal Affairs Committee in the statement on the government proposal for the Act of Registered Partnerships.
GR1 (Government): The applicant alleges that the chamber's approach in the present case may be contrasted with that adopted by a court in previous compulsory divorce cases.
GR1 (Government): She also refers to the legal certainty of protecting her marriage, a bidgini initia.
GR1 (Government): The government notes that the Finnish legislation imposes neither a choice nor a compulsory divorce on the applicant.
GR1 (Government): Rather, the legislation offers her the possibility to reconcile both rights, her right to sexual determination and her right to legal protection of her relationship.
GR1 (Government): The continuity of the legal relationship was emphasized by the Parliamentary Legal Affairs Committee in its statement on the proposed Act on the Confirmation of Sex of a Transsexual.
GR1 (Government): In proposing the condition whereby marriage would turn into a registered partnership and vice versa, the committee stated that the continuity of the legal relationship was essential for the preservation of certain derived rights, as the widow's pension.
GR1 (Government): The continuity also implied that the change does not create a right or obligation to the division of property unlike in a divorce.
GR1 (Government): Furthermore, the duration of the partnership is calculated from the beginning of the relationship, not from the change of the title thereof.
GR1 (Government): The affirmation was reasserted by the Parliamentary Committee on Social and Health Affairs.
GR1 (Government): In this connection, the applicant refers, for instance, to Paris against the United Kingdom.
GR1 (Government): The government wishes to note that in that case, the disputed legislation in force at the time required annulment or dissolution of marriage as prerequisite for a full gender recognition certificate.
GR1 (Government): Still, the court found no violation, holding that the UK had not failed to give legal recognition to gender reassessment and that the fact that applicants in that case could continue their relationship through a civil partnership, which carried almost all the same rights and obligations as marriage contributed to the proportionality of the gender recognition regime complained of.
GR1 (Government): This is substantially different from the legislation in force in Finland, which doesn't impose annulment or dissolution of marriage.
GR1 (Government): As regards to proportionality in the present case, the chamber considered that there are two competing rights which need to be balanced against each other, namely the applicant's rights 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.
GR1 (Government): The chamber considered that the effects of the Finnish system had not been shown to be disproportionate and that a fair balance had been struck between the competing interests.
GR1 (Government): The applicant alleges that the chamber inaccurately assumed that the state's interest laid in protecting the heterosexual marriage.
GR1 (Government): The applicant repeatedly re-distinguishes between gender identity and sexual orientation in her submissions and claims that she wishes to avoid the stigma attached to the registered partnerships as an institution reserved for homosexual couples.
GR1 (Government): The government acknowledges that gender identity is not synonymous with sexual orientation, as was highlighted in the third party interventions by Amnesty International and Transgender Europe, and that the present case does not deal with sexual orientation, but rather with gender.
GR1 (Government): The government notes that the relevant legislation is based on gender.
GR1 (Government): Furthermore, the applicant claims that a registered partnership is inferior to marriage and would constitute a downgrade in her relationship.