European Court of Human Rights confirms forced divorce of trans people is legal

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Married trans people living in countries without same-sex marriage must divorce if they want their new gender recognised, European judges have ruled.

On Wednesday, the European Court of Human Rights (ECtHR) declared the divorce requirement for married people who wish to change their legal gender does not violate the European Convention on Human Rights.

Judges in Strasbourg presided over the case of Finnish national Ms Hämäläinen, who was born male and married to a woman. After undergoing gender confirmation surgery in 1996, she wished to bring her official documents in line with her new gender.

However, the local registry office refused to register her as female, unless her wife consented to the marriage being turned into a civil partnership – or was terminated through divorce.

Claiming that this was in breach of Article 8 of the convention (rights to private and family life), Article 12 (right to marry) and a violation of Article 14 (prohibition of discrimination), Ms Hämäläinen brought the case to the ECtHR.

But it ruled yesterday that the required change of marital status would not breach her rights.

The court stated that “it was not disproportionate to require the conversion of a marriage into a registered partnership as a precondition to legal recognition of an acquired gender as that was a genuine option which provided legal protection for same-sex couples that was almost identical to that of marriage.”

Campaigners expressed their dismay over the ruling.

Transgender Europe Co-Chair Alecs Recher said: “It is a missed chance to bring the practise of the court in line with the calls from many human rights specialists not to put trans persons in a dilemma to choose between legal gender recognition and other human rights like the right to marry. Today, those European States still forcing trans persons to give up their most basic rights have been told that their approach is acceptable – what is not acceptable.”

Finnish MEP Sirpa Pietikäinen said: “The ruling is a disappointment for those transgender people who wish to stay married throughout the gender recognition process.”

MEP Dennis de Jong added: “The divorce requirement now acknowledged by the court does have a very negative impact on the family life of transgenders and their partners.

“Although family law is not a European competence, I call upon Finland and other states for reasons of humanity, to respect the rights of transgender persons and follow the example of the 11 EU Member States which do not require transgender people to divorce in order to have their gender recognised.”

Campaigners in Britain have continuously lobbied for an end to the spousal veto, which requires a married trans person to obtain written consent from their spouse before they can be granted gender recognition.

Unlike in Scotland’s same-sex marriage law, the Marriage (Same Sex Couples) Act for England and Wales still includes this discriminatory requirement.