## Facts

- The applicant, a Finnish national born in 1963 and registered male at birth, married a woman in 1996; they had a child in 2002.
- She was diagnosed with gender dysphoria (2005) and later as transsexual (2006), and underwent gender-reassignment surgery in 2009.
- She changed her name on some documents, but her personal identity number and legal sex in the population register remained male.
- Finnish law allowed legal gender recognition only if the person was not married or in a registered partnership; an exception permitted an existing marriage to continue if it was converted into a registered partnership with the spouse’s consent.
- The applicant wished to obtain legal recognition of her female gender while remaining married; she did not want a divorce.
- The applicant’s spouse refused, for religious reasons and perceived family interests, to consent to conversion of the marriage into a registered partnership.
- Finnish authorities refused to amend the applicant’s legal gender in the register while the marriage remained unchanged.

## Issues

1. Whether Finland violated Article 8 by conditioning legal gender recognition on divorce or conversion of an existing marriage into a registered partnership.
2. Whether the same requirement constituted discrimination contrary to Article 14 taken with Article 8, based on gender identity and/or marital status.
3. Whether Article 12 (right to marry) required Finland to allow the applicant to remain married and obtain legal gender recognition.

## Decision

- The Grand Chamber held, by majority, that there was no violation of Article 8.
- The Grand Chamber held, by majority, that there was no violation of Article 14 taken together with Article 8.
- The Court found no need to examine Article 12 separately.
- The Court reasoned that the case primarily concerned whether Finland had a positive obligation to provide legal gender recognition without any change to the applicant’s marital status.
- Given limited European consensus on recognition of gender change within existing marriages and the sensitivity of marriage and family-law policy, Finland had a margin of appreciation.
- The Court accepted Finland’s aim of avoiding a same-sex marriage under then-applicable domestic law defining marriage as between a man and a woman.
- The availability of conversion to registered partnership, with largely similar legal effects to marriage, meant the applicant had a practical route to legal gender recognition; the condition was not disproportionate.

## Legal Principles

- Gender identity falls within “private life” under Article 8, but Article 8 may frame claims as positive obligations requiring a fair balance between individual interests and public interests.
- In areas involving marriage and family-law status, and absent clear European consensus, states retain a margin of appreciation in structuring gender-recognition regimes.
- Conditioning legal gender recognition on divorce or conversion of an existing marriage can be proportionate under Article 8 when the state pursues a legitimate aim tied to its marriage regime and provides a functionally comparable legal status for the couple.
- Differential treatment affecting transgender persons may be justified under Article 14 in conjunction with Article 8 where it pursues a legitimate aim and is proportionate, including where an alternative status largely preserves the couple’s legal rights and duties.
- Where the substance of the complaint concerns gender recognition within an existing marriage, Article 12 may not require separate analysis if the Article 8 assessment resolves the core claim.

## Conclusion

The Grand Chamber concluded that Finland did not breach the Convention by requiring a married transgender person to divorce or convert the marriage into a registered partnership as a condition for legal gender recognition, because the state could preserve its then-existing definition of marriage while offering a largely equivalent alternative status and maintaining a fair balance under Articles 8 and 14.


Hämäläinen v. Finland, App. No. 37359/09 (Eur. Ct. H.R. July 16, 2014) (GC)