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18 July 2014

Heli Hämäläinen v. Finland

(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.

16 comments:

Heli said...

Please tell me what is the protected interest, "Rechtsgut" in this case? Is it real? What harm would it cause if the state had given me a female personal identity number? The actual interest is the segregation by sexual orientation. And the Finnish state uses me as an instrument, giving me instrumental value only. This is against the philosophy of Immanuel Kant where every human individual has intrinsic value.

http://en.wikipedia.org/wiki/Intrinsic_value_(ethics)

You should study the protestant church history and especially the part of state church in that. In Finland we have no longer a state church but the foundation of that tradition is still alive. And the state is regulating marriages on behalf of the church. Is that really one of the missions of the state? Finnish Evangelical Lutheran church has a declining membership profile. Especially young people do not belong to the church. If the church declared our marriage null and void ab initio that would definitely affect the membership profile negatively. That would be the case too if the church condemned interracial marriages too.

Summing up everything aforementioned, segregation by race or any other personal characteristics like sexual orientation is an artificial interest that is protecting political values, not human rights. However, in the scope of human rights we should protect real people because in ethics they have intrinsic value in Kantian terms. There is no "Pflicht", civil duty for me to follow the state in this. Because I am not a servant of the state. As a transsexual individual I am as free as the others, and I am going to stay free. Complying with this subjugation would mean the same to me as for Rosa Parks giving her seat to a white guy in a crowded bus in Montgomery Alabama.

Zagria said...

As a computer professional I am appalled by gender codes embedded in identity codes. Definitely not good practice. However that is not the issue. Your state has rules re gender and marriage.

While you criticize the state's "segregation by sexual orientation", you do not state whether you support gay marriage. Until you do so, you may be taken as wanting gay marriage for yourself, but not for others. The Rechtsgut that would be harmed if you are granted an exception on religious grounds is that of other (gay & lesbian) Finns who also want to marry.

Your wife was quoted: that she does not "consent with the degradation of my religious marriage to something else". You went to the ECHR with arguments about 'holy" that is religious matrimony. But religious matrimony is no concern of either the state or of the ECHR. Now you criticize the Finnish Evangelical Lutheran church. May I ask if your church recognizes you as a) a woman and b) as married to a woman? The Finnish State offers you either a) or b) and is willing to treat you like other Finnish lesbians. Does the church offer you as much? If you are in disagreement with the church as you imply here, does that mean that you have apostasized?

The best solution is for Finland to join other European nations and introduce equal marriage. I hope that you are working with LGBT organizations in bringing that about.

Heli said...

I support the idea of an equal marriage but in my case I don't need it because I am already married. This is my reality that has not reached the buraeucrats. The only implication in this case is that my legal gender recognition has failed and I have a passport that indicates I am a male person.

The Finnish Evangelical Lutheran church cannot control me whether I am wearing panties or even a skirt. So I can express my womanhood freely because we do not have sharia law that prohibits crossdressing. The only difference with crossdressers is that I do not have a warderobe of male clothes neither do I have a body of male phenotype.

I cannot compare myself to Finnish lesbians because no lesbian cannot become a father. That is prohibited in the Act on registered partnerships 950/2001 Section 9 (1).

"Section 9
(1) The provisions of the Paternity Act (700/1975; isyyslaki) on the establishment of
paternity on the basis of marriage do not apply in a registered partnership, nor
do any other provisions applicable to a spouse exclusively by virtue of his or her
sex."

http://www.finlex.fi/fi/laki/kaannokset/2001/en20010950

My paternity has been established on the basis of marriage. In that case I have more privileges than lesbians. The ECtHR also accepted this segregation in its decision though they had an approach of same sex marriage.

I have also served a mandatory military service in 1983-84 when Finnish Defense Forces were closed for women. Women were invalid for military service. But I was a subject of conscription. I cannot be compared with other lesbians.

I want a life of my own instead of a homosexual life. That is not homophobia but self-determination. I have a life of a transgendered person and I am going to live that life. And you can push your same-sex liturgy where there is no sunlight. Have you heard of a legal concept called sui generis?

http://en.wikipedia.org/wiki/Sui_generis

eva moser said...

there is a fundamental legal disconnect in the interpretation of "legality" when it comes to enforcing sex-designations. this legal disconnect solely exists in order to protect the self-righteousness of some extremist religious groups who feel that (a) they have a right to oppress others with their beliefs, and (b) that our lives, before God, are represented by legal documents, not by lived reality - which could just be seen as another fundamental disconnect, this time one of these religious righteous groups, and the religion they claim to follow.

let me explain: Heli's marriage was religiously and legally acceptable when consecrated before God. from the perspective of the legal system, marriage is a form of a legal contract of mutual support, entered into by two adults. if Heli's sex-designation now needs changing, then none of her legal obligations, rights, or duties will change because of this fact. the law is the law, it applies no matter what changes to our personal documents are needed.
everything that has has been agreed to before, be it a car loan, a mortgage, Heli's citizenship or her academic and professional credentials REMAIN INTACT, no matter what needs changing. BECAUSE SHE IS THE SAME LEGAL PERSON. legal obligations and rights do not change because a person changes their name, address, date of birth, or sex. behaviours approved as legal at some time in the past do not suddenly become retroactively illegal, and people are not retroactively punished for such changes, even if they become illegal in the future. for example: if a person, having just turned 18 years old, gets herself a driver's license. a year later, it is found that this individual's birthday is in fact a month later, and her documents are corrected accordingly. as a result, obtaining that driver's license does not now retroactively become a crime because it was "fraudulently obtained before age 18", it does not get revoked, nor is the person retroactively accused of "driving without a license". what was legally accepted a year ago is still legal. an oddity maybe, BUT IT REMAINS LEGAL.

of course, the same thing should happen with Heli's marriage: NOTHING. she should stay married as consecrating this marriage was legal (and religiously accepted) when it took place, it has absolutely nothing to do with what her documents should state today. the fact that the government refuses to update these documents is not an expression of a legal argument, but of a moral interpretation of extremist religious interpretations that the government should be subject to, and uphold, certain religious interpretations over others. her same-sex marriage with her partner already exists, IT IS LIVED REALITY. what government officials apparently can't accept is THAT THIS IS ALREADY REALITY, and now needs to be properly reflected in their databases. by refusing to accept this, these government officials service a specific religious dogma, not a legal imperative. the legal imperative clearly states that legal documents ought to represent REAL FACTS. there are no laws that state government officials are entitled to misrepresent people's factual data, and falsify information in government documents and databases in order to superficially uphold their own religious morality. this is particularly true in a government where the separation of church and state are founding principles and acknowledged by the constitution.
[...]

eva moser said...

{break due to limitation of the freedom of expression by BlogSpot, in particular their unannounced, retroactively imposed limitation on the length of the text}

[...]
like every other legally recognized contract, Heli's marriage was entered into when it was legal for her to do so. like every other contract, it should be maintained, no matter what other legal changes Heli requires to her documentation, or whatever life situation she finds herself in.
in the aforementioned case of a driver's license obtained by a 17 year old due to an error in that person's birth date, the individual will not be stripped of her right to drive, or of the fact that she has successfully passed that driver's test. nothing like this will ever happen - and nobody will ever contest it. however, unlike in Heli's case, no denial of lived reality by bureaucratic administration, prompted by religious self-righteousness, is at play in this case - which makes it plain clear that in what way Heli is being treated differently is not a legal imperative, but one of administrative oppression in the service of maintaining an overt heteronormative society, as defined not by law, but by government bureaucrats, at their own discretion. if oppressing Heli in what she is doing in real life can't be achieved, then at least it will be maintained in deliberately falsified government records.

i certainly hope that such abusive behaviour by government officials helps at least some people to get a better night's rest, in that they can delude themselves that a reality they seem to so much hate does in fact not exist - as long as it can be kept out of government records.

Heli said...

Thank you Eva for your profound text.

Zagria said...

Your penultimate sentence is certainly homophobic.

In rejecting one arbitrary law you claim the support of a different arbitrary law. You should decide whether you follow the law or defy it. One can cherry-pick to arrive at any conclusion whatever.

You seem to be saying that you "cannot compare myself to Finnish lesbians" because you are a father and did military service. These are exactly the arguments that TERFs use to argue that we are not women. If you cannot be compared to Finnish women, then what is your problem with having a male passport. You say: "I have more privileges than lesbians". This is so arrogant. You are undermining the cause of trans rights. If you want to be a woman, you should be treated as a woman in law and surrender male privileges.

"For whosoever hath, to him shall be given, and he shall have more abundance: but whosoever hath not, from him shall be taken away even that he hath." Matthew 13:12 -- one of the most unethical verses in the Christian book.

Heli said...

Existing paternity is something that an individual cannot give up. It is about the rights of children. That paternity is making an exception to natal females.

I want an ID card or a passport that does not out me. It is funny that you are transphobic and try to see me as a projection of a fake homosexual which I am not. I am transgendered and I have nothing against homosexuals. But I am the only one who knows who I am.

Speaking about that womanhood the gender recognition could bring. Even the section 5 of the Finnish Gender Recognition Act states that the effects of that law are giving way to other provisions:

"Section 5 – Legal consequences of legal recognition
The gender legally recognised in accordance with this Act shall be considered the person’s gender
when applying other legislation, unless otherwise provided."

http://www.finlex.fi/en/laki/kaannokset/2002/en20020563

If I could have my gender recognized I would be registered in the population information system as transsexual (Civil code 661/2009 Section 13 (15))

I do have more privileges than lesbians. That is a fact, not my opinion. It is not an argument. Even after a gender recognition I would stay more privileged because my paternity will prevail, as the European Court of Human Rights has also stated in its notes. It won't be nulled void ab initio if we changed to Registered Partnership.

I am constantly in danger to be discriminated against, so I won't give up any of my rights or privileges. I will preserve them as my spoils of war.

You are accusing that I am arrogant. I do not mean to hurt anybody but I stand on my own now, for the rest of my life.

Live long and prosper.

Zagria said...

Today the Finnish Parliament has voted for equal marriage.

Heli with her arrogant claims, "I do have more privileges than lesbians" will now benefit and be able to legally transition while holding on to her secular marriage. Will she be able to avoid the degradation of her Lutheran marriage? That is something else.

It is a shame that somebody as homophobic as Heli should benefit from LGBT activism, but that it how it goes.

Let us also remember that Mrs Hämäläinen wrote "I have considered the found transsexuality as an illness. It is like cancer". Can that attitude exist in a non-degraded marriage?


Heli said...

Yes, after 1 March 2017 it is possible for me to apply for the gender recognition. The relevant amendment in Finnish gender recognition act passed Finnish parliament. There is no such a precondition of being lesbian although the grand chamber parallelled our case with two individuals of the same sex entering into a marriage. The court recognized my fatherhood as entered into force by the paternity act, what is impossible for women. So in my case the recognition is ex nunc, not ex tunc. Thus the marriage will prevail in any case. It is still a Lutheran marriage, also after the upcoming gender recognition. I see I am not enjoying any 'Lesbian privileges'. The Finnish society stops to kick me in the head as there are no grounds for it anymore. As lesbians can marry they cannot prevent me from getting my gender recognition. Because that would be against the ECHR Grand Chamber Judgment.

This whole episode has been pointless as this legal article unveils the bigotry behind the judgment. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2641698

Zagria said...

Thank you for the update.

However I see that you are still flaunting your male privilege, and still do not understand the difference between a religious marriage and a civil marriage.

Heli said...

Nope, I stick to the facts only. The norm is different for me than to two natal females. You can believe much but in this point, in paternity the law is clear. And it is recognized by the Grand Chamber of the ECHR.

In this world dear Zagria transgender individuals are not the only individuals having rights and obligations. Also children have rights that are coded in international UN provisions and which are adopted in the domestic legislation pursuant to the international law. The right for a child, to have her father is a stronger right in the society than a gender recognition. You cannot alter that fundamental fact.

As far as a religious marriage is concerned, in legal terms it equals with a civil marriage. The difference is in the religious meaning. My religious view is that it is up to the parties how sacred they keep their marriage. Is it just a legal act that has come into a force by the provisions of the marriage act or is it really a relationship where the parties want to keep the evil out. This is not related with the Christian faith only. Also atheists can keep evil out of their marriages because that is the key for a long-lasting relationship. You need love to do that and I believe God is Love as Love prevails after everything ends.

Zagria said...

You have a strange idea of what constitutes a fact. The major fact is that you persist in demanding legal recognition of your male privilege. "The norm is different for me than to two natal females" etc. If you wanted to keep male privileges, you should have stayed a man. Finnish law and the ECHR seem to treating you like any other female couple. That, as far as it goes, is the right thing to do. What is wrong is treating same-sex couples differently from mixed couples.

Heli said...

"Finnish law and the ECHR seem to treating you like any other female couple."

No it does not treat me. There are certain differences, mainly concerning family life. In gender recognition my old male gendered indentity number remains in the population information system. They do not abolish it. The same applies to pre recognition parenthood arrangements. The arrangement is ex lege ex nunc, not ex tunc, so the paternity is not annulled, i.e. never existed. Paternity remains as it is. So does all commitments I have made with my old identity number.

In the case of same sex couples there is a requirement of intra-family adoption. So the other natal female in the marriage can't use the provisions of paternity act because as a female person she is out of the material coverage of the paternity act. Only male persons can become fathers in Finnish legislation.

So your term 'male privilege' is pretty well constituted in Finnish legislation. But it is not my fault. I try to produce proof for my statements with these legal links

https://e-justice.europa.eu/content_member_state_law-6-fi-en.do

a google translation from Swedish: Act on Population Information Centre Certificate Services 21.8.2009/661 §13 (15)

https://translate.google.fi/translate?sl=sv&tl=en&js=y&prev=_t&hl=fi&ie=UTF-8&u=http%3A%2F%2Fwww.finlex.fi%2Fsv%2Flaki%2Fajantasa%2F2009%2F20090661%23L2P13&edit-text=

"§ 13

Personal data entered in the system

The following data on persons subject to registration shall be registered in the census:

1) full name,

2) personal identity as well as technical identification code and electronic client,

3) The domicile and residence where, temporary housing, and the information on a property, building and apartment specifying the person's domicile and residence where,

4) parents' full names and personal identification numbers,

5) marital status and details of opening and dissolution of marriage or registered partnership and registered partnership,

6) the spouse or registered partner's full name and personal identity,

7) children's full name and personal identity,

8) data on children's and parents' family status;

9) information on child custody and what custody include,

10) information on approved adoption, (20.1.2012 / 29)

11) information on the restriction of capacity to act, interests and power of attorney and guardian or fullmäktigens identification data,

12) information on the care of children,

13) birthplace municipality or place and date of the state,

14) nationality;

15) information on the determination of a transsexual person's gender,

16) information on the date of death or date of presumed death,"

Paternity act section 2 http://www.finlex.fi/en/laki/kaannokset/2015/en20150011.pdf
(the same provision was enacted in the previous paternity act that was in force when I became a father and during this ECHR process)

"Section 2 – Paternity on the basis of marriage
(1) When a child is born in marriage, the husband is the father of the child.
(2) If the marriage is dissolved before the birth of the child due to the death of the
husband, he is the father of the child if the child was born within a time that the
child could have been conceived before the death of the husband. However, if the
mother had entered into a new marriage before the birth of the child, the latter
husband is the father of the child."


Zagria said...

You keep shifting your ground. What you have just written was not the grounds on which you went to court. You were offered what a female couple with a child would have, i.e. female legal gender and a civil union. But what cis females have to accept was not good enough for you. You muddied the discussion by bringing in religions, despite your relationship to your church being no business of the state or the ECHR. You declined the offer of female legal gender and a civil union. The situation you are now in is your choice.

However the major issue is that we queer people have been refused gender recognition and marriage recognition until very recently, and one way or another we got by. The only true marriage is the psychological commitment of two lovers to each other. Civil unions, legal marriages, religious marriages are all social constructions. They are but shades compared to the commitment of lovers.

Heli said...

I did not know about the ECHR judgment before I went into the court. Afterwards I know that and I can refer it. Religion is one business of ECHR, article 9. https://en.wikipedia.org/wiki/Article_9_of_the_European_Convention_on_Human_Rights

I was worried about the destiny of my paternity since in Italy I have heard the paternity it is annulled as well as the marriage. So they apply legislation ex tunc, from the beginning. In Finland, according to the explanation of the Finnish government in the court and the legal practice it has been ex nunc. So as the gender is recognized its legal effect starts from the moment of recognition, not from the outset, beginning, or birth. I was unsure that was the case. That means also that people who have been under conscription because of their male gender marker in the certain age are still under that conscription act although they are recognized female.

https://en.wikipedia.org/wiki/Ex_nunc
https://en.wikipedia.org/wiki/Ex_tunc
ex lege = from the law

And yes I did not want to have a divorce and thus gain eligibility to gender recognition. I chose to stay married. It is my very own choice and private business so in the case one does not like it I advice to marry someone else. :)