Transsexualism before the ECHR

Publié le : 2 August 2013

 On 13 November 2012, the fourth section of the European Court of Human Rights (ECHR) unanimously turned down the request of a Finnish transsexual whose sex change was not acknowledged by his country of birth because of his marital status. Grégor Puppinck, Doctor of Law, is currently analysing the implications of this decision (Decree H. v. Finland – No. 37359/09).          

A male from birth, the applicant changed his first name by deed poll in 2006 and underwent sex change surgery in 2009. But, because he was married, and Finnish law prohibits same sex marriages, the public authorities refused to grant him a new identity number acknowledging the person’s female gender. This case was presented to the ECHR.           
Initially citing violation of Article 8 of the European Convention on Human Rights relating to the entitlement to a private and family life, whilst noting "that refusal to grant full legal entitlements further to sex change surgery was an infringement of the interested party’s private life", the Court deemed that this infringement was justified "in the interests of the State to preserve the traditional institution of marriage". Finally, the Court considered that the principle of non-discrimination had not been violated since, "the applicant’s situation [was not] comparable to that of non-transsexuals or unmarried transsexuals".    
According to Grégor Puppinck, the decision taken by the ECHR on 29 April 2013 to represent the case of H. v. Finland to the Grand Chamber of the ECHR was based on Article 43 of the European Convention on Human Rights according to which a case may be re-presented if it raises a "serious question relating to the interpretation or application of the Convention or the protocols thereof, or a serious question of a general nature".      
This re-presentation nevertheless gives Grégor Puppinck cause for concern. In fact, on this occasion, "some judges might consider […] introducing a new law", as witnessed in the Goodwin v. United Kingdom case presented on 11 July 2002, in the light of which "transsexuals  [were granted] the right to marry persons with a different legal gender", thus contravening judicial precedent.      
As far as Grégor Puppinck is concerned, the case of H. v. Finland raises problems, e.g. the fact that "it splits the definition of gender between objective biological gender and subjective social gender", and legal fiction which is employed by the law when it considers social gender to differentiate between legal gender and biological gender.
The Court’s decision will depend on the composition of the Grand Chamber, which is extremely divided in relation to society-related issues.On 13 November 2012, the fourth section of the European Court of Human Rights (ECHR) unanimously turned down the request of a Finnish transsexual whose sex change was not acknowledged by his country of birth because of his marital status. Grégor Puppinck, Doctor of Law, is currently analysing the implications of this decision (Decree H. v. Finland – No. 37359/09).          
A male from birth, the applicant changed his first name by deed poll in 2006 and underwent sex change surgery in 2009. But, because he was married, and Finnish law prohibits same sex marriages, the public authorities refused to grant him a new identity number acknowledging the person’s female gender. This case was presented to the ECHR.           
Initially citing violation of Article 8 of the European Convention on Human Rights relating to the entitlement to a private and family life, whilst noting "that refusal to grant full legal entitlements further to sex change surgery was an infringement of the interested party’s private life", the Court deemed that this infringement was justified "in the interests of the State to preserve the traditional institution of marriage". Finally, the Court considered that the principle of non-discrimination had not been violated since, "the applicant’s situation [was not] comparable to that of non-transsexuals or unmarried transsexuals".    
According to Grégor Puppinck, the decision taken by the ECHR on 29 April 2013 to represent the case of H. v. Finland to the Grand Chamber of the ECHR was based on Article 43 of the European Convention on Human Rights according to which a case may be re-presented if it raises a "serious question relating to the interpretation or application of the Convention or the protocols thereof, or a serious question of a general nature".      
This re-presentation nevertheless gives Grégor Puppinck cause for concern. In fact, on this occasion, "some judges might consider […] introducing a new law", as witnessed in the Goodwin v. United Kingdom case presented on 11 July 2002, in the light of which "transsexuals  [were granted] the right to marry persons with a different legal gender", thus contravening judicial precedent.      
As far as Grégor Puppinck is concerned, the case of H. v. Finland raises problems, e.g. the fact that "it splits the definition of gender between objective biological gender and subjective social gender", and legal fiction which is employed by the law when it considers social gender to differentiate between legal gender and biological gender.
The Court’s decision will depend on the composition of the Grand Chamber, which is extremely divided in relation to society-related issues.

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