Court: ‘No Obligation’ Under European Convention to Allow Same-Sex Marriage

By Tatiana Lozano | July 21, 2014 | 4:54pm EDT

Heli Hämäläinen (Facebook)

( - The European Convention on Human Rights “enshrines the traditional concept of marriage as between a man and a woman,” and there is ”no obligation on Contracting States to grant same-sex couples access to marriage,” the European Court of Human Rights ruled last Wednesday.

Article 12 of the European Convention, which governs the Council of Europe, states that “men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

The Council of Europe is a regional human rights body composed of 47 nations, 28 of which are also members of the European Union. Currently, only 11 European nations recognize same-sex marriage, while 39 others do not.

“While it is true that some Contracting States have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples,” noted the majority opinion in Hämäläinen v. Finland.

The case came before the Human Rights Court in Strasbourg, France in 2009 after Finland - which does not recognize same-sex marriage - refused to recognize Heli Hämäläinen’s sex change without a divorce or a civil partnership.

Hämäläinen, who married a woman in 1996 and had a child with her, underwent a male-to-female operation in 2009 but wanted to stay married instead of getting a divorce. A same-sex marriage “was an unintended and accidental outcome of legal gender recognition,” Hämäläinen argued.

According to court documents, since Hämäläinen’s “wife had not given her consent to the transformation of their marriage into a registered partnership,” as required under Finnish law, “the applicant’s new gender could not be recorded in the population register.”

The Court ruled that since a registered partnership “was a genuine option which provided legal protection for same-sex couples that was almost identical to that of marriage,” Hämäläinen’s rights had not been violated.

In an open letter to the court, Hämäläinen said that the couple would stay married, adding that "the easiest option this time could be detransition and adoption of the former male forenames."

However, transgender rights advocates like Amnesty International decried the ruling, calling it “disappointing and unjust.”

Jezerca Tigani, deputy director of Amnesty’s Europe and Central Asia Program, noted in a press release that “with this deeply disappointing and unjust ruling, the European Court of Human Rights is condoning Finland’s repressive laws affecting transgender people and reinforcing harmful gender stereotypes.”

“These laws are disproportionate and discriminatory,” Tigani added. “They are forcing Heli to choose between legal recognition of her gender identity and staying married with her partner. Having to choose one over the other is a violation of her rights….The discriminatory laws preventing same-sex couples from marrying should not be used to deny Heli the enjoyment of her right to private and family life."

But social conservatives, including Ireland’s Iona Institute, supported the court’s decision.

“While the ruling still leaves it up to signatory countries to decide what form marriage should take in their legal systems, it makes it harder for campaigners to argue that same-sex marriage is a ‘fundamental right’ let alone ‘the civil rights issue of this generation',” the Institute said in a Friday newsletter.

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