The European Court has ruled that member nations that do not recognize same-sex marriage can compel transgender people to divorce their partners if they wish to have their gender identities legally recognized.
The ruling was a blow for Finnish customs official Heli Hämäläinen and her wife, who have a 12-year-old child together and simply want to enjoy their marriage, even if the Finnish government doesn’t approve of it. She’s been battling the legal system since 2009, fighting for recognition of her gender. Despite suing on the grounds that forcing her to divorce would constitute discrimination, a violation of privacy and a violation of the right to marry. Hämäläinen’s case was denied, and the court made it clear that it didn’t think she had experienced a human rights violation.
In defense of the ruling, the court argued that it could not compel member nations of the EU to recognize same-sex marriage if they didn’t do so already, and that forcing them to allow transgender people to remain legally married while also being legally recognized by the correct gender would be tantamount to doing just that. Furthermore, the court claimed, because Hämäläinen and her wife could enter what’s known as a registered partnership, which offers many of the same protections and benefits of marriage (akin to a US civil union), they weren’t being deprived of equal rights in Finnish society.
Hämäläinen, and transgender advocates, feel differently. She and her wife have had a long, loving marriage, and their Christian faith prohibits divorce, making it an untenable option for them. Marriage and a registered partnership are not the same thing, which is precisely why she and her wife opted to marry 18 years ago rather than seeking registration. Furthermore, it’s incredibly dehumanizing to force transgender people to either divorce, or remain stuck with the wrong gender on their legal documentation.
For Hämäläinen, the issue was particularly acute, because it interfered with her career, too. As a customs official, she needs to be able to travel, and having the wrong gender marker in her passport and government identification documents made it impossible to apply for some consular jobs and positions. For an official working in foreign trade, this is a serious problem — and the solution shouldn’t be to tell her to legally break with her wife so she can be legally recognized as the woman she is.
Finland’s requirements for legal recognition of transgender people also include a psychiatric assessment and proof of sterilization. These burdensome requirements have been dropped by many nations around the world, which recognize them as invasive human rights violations — after all, cis people don’t need to prove their gender through medical and psychiatric examinations. Hämäläinen makes it clear that she intends to continue celebrating her wedding anniversaries and her bond with her wife, and that though the implications of the decision are that she must divorce to be called “she” and “her,” she rejects the ruling’s definition of her relationship.
Elsewhere in Europe, activists are working on the so-called “spousal veto” in effect in England and Wales, which humiliatingly forces transgender people to get the signature of their spouses if they wish to have their gender legally recognized. If a spouse doesn’t approve a gender change, an applicant must divorce.
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