(In this account, Mrs Hämäläinen refers to Heli's cis spouse).
Helsinki resident, Hämäläinen (born 1963), did a degree in economics and became a customs officer. He married as a man in 1996, and he and his wife had a daughter in 2002.
In 2004 they discussed his dissonant gender identity and he sought professional help. In April 2006 he was diagnosed 'F64', and Mrs Hämäläinen accepted that her spouse is a woman. In June Hämäläinen took that name Heli, but was unable to have her identity number changed to one that indicates female, as she is married to a woman, and Finnish law, which does permit same-sex civil unions, does not permit same-sex marriages. Either divorce or conversion of the marriage to a civil union is required before Hämäläinen can be registered as female.
In September 2009, Heli had transgender surgery.
Without success, Hämäläinen appealed through the Finnish court system, and then to the European Court of Human Rights (ECHR) complaining about breaches of her rights under Article 8 (right to privacy and family life), Article 12 (right to marry) and Article 14 (prohibition of discrimination). In November 2012 the ECHR rejected the complaint on all grounds in that the European Convention on Human Rights does not oblige states to open marriage to same-sex couples.
Constantin Cojocariu became their lawyer at this point. While agreeing that
"it would have been preferable to argue the case for same sex marriage more broadly. Indeed, equal marriage legislation also benefits transgender spouses, as it removes the underlying objection to legal gender recognition of the trans spouse",
it is obvious that the ECHR is not ready to move forward on the issue. He therefore attempted to distance the case from the issue of same-sex marriage. Forced divorce legislation severs existing marriages unlike discriminatory marriage legislation that does not allow same-sex marriage to form in the first place. The law in Germany and Switzerland makes this distinction and allows transgender marriages to continue. In Finland the marriages of transsexuals are, with the consent of the cis spouse, converted automatically to a civil union with almost the same rights and benefits as a marriage. Cojocariu and the Hämäläinens therefore decided to concentrate on the personal and religious significance of marriage, even though Article 9 (religion) had not been mentioned previously. It was Cojocariu's opinion that
"forced divorce legislation empties Article 12 of any significance, to the extent that Article 12 is interpreted as allowing the state to interfere with valid marriages to the point of triggering their dissolution".
Heli and her wife are Evangelical Lutherans and feel that, regardless of the circumstances of sex/gender, they should not be compelled to degrade their marriage sacraments. In October 2013 the Grand Chamber of the ECHR held a hearing, and asked various questions including the motivation of Mrs Hämäläinen. In response she wrote a letter to the court in which she says:
"I have considered the found transsexuality as an illness. It is like cancer, there is a treatment practice for that illness. I am aware that when I call this phenomenon an illness I may hurt someone. But since in Finland it has a diagnosis and requires an intervention of modern medicine I can call it an illness. There is no spousal consent required in Finland for the treatment of illnesses. … I was never asked a question whether I accept the change of gender of my spouse. I was asked a question whether I consent with the degradation of my religious marriage to something else. And my answer is no. … The question is about the religious marriage. I have entered into a holy matrimony and other arrangement is against my religious conviction and puts me in an unequal position vis-à-vis compared to other wives having a spouse with a treatable disease."
In July 2014, the Grand Chamber of the ECHR ruled: "The Court found 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. The minor differences between these two legal concepts were not capable of rendering the current Finnish system deficient from the point of view of the State’s positive obligation under Article 8. In addition, such a conversion would not have any implications for the applicant’s family life as it would not affect the paternity of the applicant’s daughter or the responsibility for the care, custody, or maintenance of the child."
Observations. There are aspects that are not addressed in either Constantin Cojocariu's article in ECHRSO or in the ECHR’s rulings.
1) To become a women is to be treated as one in law. Hämäläinen is asking to be treated differently from Finnish cis women. The best resolution is for Finland to introduce equal marriage legislation, but until then, to ask to be a woman married to a woman while cis women are denied this, is to ask for a special right/privilege. Cojocariu makes a distinction between breaking an existing marriage and forming a new one. He does not seem to realize that this would increase the discrimination against cis women. It would be to say that those who have, may have more, but those who have nothing, may not.
Among the things that we are not told is how Finnish gay and lesbian couples are treated if they have lived and married in say Spain or Belgium. Are their marriages 'degraded' to a civil uinion on return to Finland? Does Cojocariualso regard this as emptying Article 12 of any significance?
2) Religious marriage and civil marriage are not the same thing. True many persons marry in church, mosque, synagogue or temple and find that they have acquired the rights of civil marriage in taxation, inheritance, the law courts etc. This is because the priest/imam/rabbi is a registered agent of the state and files the civil marriage papers for the married couple.
However it is quite possible to be religiously married and not civilly married: one partner is too young, or the degree of consanguinity is too close; one man and multiple wives can be married as Muslims or Mormons. Or if the priest does not file the civil marriage papers. Contrariwise, same-sex marriages are valid in many countries but not religiously recognized. Divorced Catholics do marry civilly, but the marriage is not recognized by their church.
Mrs Hämäläinen said that she does not "consent with the degradation of my religious marriage to something else". There is no mention in any of the articles that I read of the attitude of the Finnish Lutheran Church. Nobody has told us whether their religious marriage has been in any way degraded - only that the civil aspect would be converted to a civil union. If the church still regards the Hämäläinens as married, then as Lutherans that is all that should matter. The Lutheran Marriage will smoothly co-exist with a civil union.
It is not to the advantage of transsexuals in general to have special marriage rights, nor is it a good idea to confuse religious marriage with civil marriage. As the Hämäläinens are primarily concerned with their marriage in that they are religious people, neither the Finnish state nor the ECHR should have been involved. The status of their religious marriage is up to the hierarchy of the Lutheran church.
This lack of distinction between religious marriage and civil marriage, whether through ignorance or intention, is creating confusion.