Intersectional Rewrites


The Intersectional Rewrites project is hosting a blog symposium, dedicated to examining the role intersectional analysis plays and could play in the case law of the European Court of Human Rights.

Intersectionality and the failures of the European Court of Human Rights: A critical analysis of Hämäläinen v. Finland

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In Hämäläinen v. Finland (2014) the European Court of Human Rights (the Court) affirmed Finland’s refusal to register Hämäläinen as a transitioned married woman. This critique analyses the judgment through the lens of intersectionality. Using the intersectionality framework, individuals have unique social and political identities, derived from factors such as gender, race, and class, which can either empower or oppress them. The Court’s judgment, which denied the plaintiff’s recognition, can be critiqued through this lens, especially regarding the Court’s stance on perpetuating binary gender norms, overlooking transgender experiences, and not fully considering multifaceted identities.

The case concerned a transgender woman who sought legal recognition of her gender without dissolving her marriage. Finnish law required that for her new gender to be legally recognised, her existing marriage had to be converted into a civil partnership; Finland did not recognise same-sex marriages at that time. The Court ruled that there was no violation of human rights, recognising the wide margin of appreciation for states due to the lack of consensus in Europe on gender recognition and same-sex marriage. The judgment also considered and rejected claims of discrimination (Article 14) and the right to marry (Article 12).

A key criticism of the judgment emanates from its perpetuation of binary gender norms to the detriment of accommodating the rights of the LGBTQI+ community. The Court’s judgment to uphold Finland’s requirement on same-sex marriages validated the Council of Europe region’s domestic bans on same-sex marriages. By holding that a marriage is no longer protected under the European Convention on Human Rights (ECHR) if it converts from a heterosexual marriage to a same-sex marriage due to the gender transition of one of the spouses, the Court, referencing Rees v. United Kingdom, emphasised the traditional concept of marriage, stating that Article 12 of the EHCR upholds the right of a man and woman to marry, encapsulating the heterosexual view of matrimony.

The Court disregarded the appellant’s transgender experiences because her request did not conform to societal expectations of what it means to be a man or woman. Intersectionality plays a key role in challenging this paradigm. In this case, a transgender individual faced discrimination due to her  gender transition. The Court’s reliance on binary gender norms in marriage laws further marginalised LGBTQI+ people in Finland and Europe. The judgment overlooked challenges faced by transgender people who don’t meet all registration criteria, especially those who opt out of surgeries. By basing the ruling on the spouse’s non-consent, the Court intensified the stigma for transgender individuals unable to meet legislative standards despite aligning with their gender identity.

It is my contention that the Court failed in its role to balance the state’s interest in safeguarding families and marriage against the applicant’s rights to a stable and coherent gender registration system. Part of the argument intersectionality makes is that there is value in recognising the distinct experiences and vulnerabilities of marginalised groups, such as LGBTQI+ communities. At the intersection of being a transitioning female and lacking registration, Hämäläinen was in a position to experience severe disadvantage in seeking any subsequent social services offered by her government. I would argue that equality before the law implied that the applicant need not dissolve a subsisting marriage and register a civil union to acquire her transitioned gender identity. Such a decision would not necessarily lead to a flood of claims, as hinted by the Finish Government, other than the LGBTQI+ individuals seeking registration of their acquired gender status within subsisting marriages. By ruling in the appellant’s favour, the court would have removed yet another layer of discrimination against LGBTQI+ individuals, in keeping with Article 14 of and Protocol no.12 to the Convention.

As things stand, the Court failed to consider Hämäläinen’s religious circumstances and claim of rights violation under Articles 8, 12 and 14 EHCR. Instead, the Court approved of section 2 of Finland’s Transsexuals Act which allows for legal gender change in marriage or registered partnerships with the express consent of the spouse or partner; consequently, marriages become registered partnerships and vice versa automatically when gender is legally reassigned. The Court disregarded the rights of transitioned individuals in same-sex unions because finding in her favour would have created “a situation in which two persons of the same gender could be married”. Consequently, the Court asserted its position that Article 12 did not protect same-sex individuals’ right to marry. The normative interpretation of marriage demonstrates the Court’s willingness to go to lengths to safeguard what Salzberg brands as ‘the illusion of marriage’ as opposed to safeguarding the interests of the LGBTQI+ community within national legal frameworks of registration.

The Hämäläinen case reflects the Court’s dynamic and oftentimes, I would argue, confusing stance on identity’s complexities and marriage impact. Finnish law, which mandates ending existing marriages or getting partner consent for gender registration, might infringe on personal privacy. The rigid legal oversight on marriage, gender, and sexuality can impact individuals’ rights, especially considering the intersecting barriers to access to gender recognition and the accompanying legal and social services. The decision by the Court can be criticised because it tends to view individuals within a single paradigm in its decision-making. In Rees v United Kingdom, for instance, the Court took the binary focus of gender (male and female) to define marriage to the exclusion of all other factors. From a perspective of intersectionality, such an approach is fundamentally flawed because it considers individuals as one-dimensional, singular, and isolated entities as opposed to parties whose experiences are influenced by multiple identities. In Hämäläinen’s case, for instance, her transgender identity intersected with her identity as a woman. The Court failed to appreciate the challenges of a transgender woman’s struggle to retain her family and religious rights and freedoms against state-mandated dissolution and disregard. The Court overlooked additional layers of discrimination and state-sanctioned oppression against individuals like Hämäläinen who belonged to several marginalised groups (women, LGBTQI+, and religious). Intersectionality demands a more holistic approach to case evaluation and adjudication by incorporating alternative perspectives, experiences and vulnerabilities that its parties would endure after similar decisions.

From an intersectional perspective, therefore, the Hämäläinen case continues a series of historical systemic hurdles against the realisation of sociopolitical and reproductive rights for the LGBTQI+ community in Europe by upholding local heteronormative perceptions of marriage. Inadvertently, the Hämäläinen decision may embolden other European countries to retain implicitly discriminatory policies against the LGBTQI+ community.

In summary, the Hämäläinen case highlights the need to view LGBTQI+ rights through an intersectional lens against current legal views on sociopolitical and reproductive rights. The Court’s decision upheld binary gender views, overlooked transgender experiences, and undervalued the nuances of multiple identities. This stance not only denied Hämäläinen’s registration based on a same-sex marriage but also raises questions about the Court’s commitment to universal rights. An intersectional approach could have better defined state boundaries regarding transgender rights and ensured access to essential services like registration.

Had the Court applied an intersectional lense to the case, its decision could have looked like this:

“84. This Court recognises that the experience of transgender individuals is layered and intersects with various challenges both socially and legally. While the Government asserts that a conversion from marriage to a registered partnership is merely nominal, it fails to recognise the broader implications on an individual’s identity and lived experience. To force the applicant, who has already navigated the complexities of gender transition, also to renegotiate her marital status is to overlook the profound psychological, emotional, and societal implications tied to these labels. This reclassification is not just about dates and titles, but also about equity, dignity, and the right to have one’s identity and relationships respected by the law. Through an intersectional lens, one must acknowledge the compounded marginalisation transgender individuals face, making such administrative relabeling far from trivial.

85. While the Court acknowledges that both marriages and registered partnerships offer protections to family life under Article 8, the Court must also consider the symbolic and cultural weight of these terms. Marriage, as an institution, carries with it a history, a set of expectations, and a status that is not easily replicated or replaced by a simple partnership registration. For the applicant and her wife, the conversion would not only alter their legal standing but might also impact the perception of their union in the wider societal context. The Court, thus, stresses that equality before the law is not just about procedural fairness, but also about recognising and honoring the diverse lived experiences of individuals. In light of this, the Court finds the enforced conversion from marriage to a registered partnership not in the spirit of genuine equality and respect for personal dignity.”

Bernardo Carvalho de Mello

Bernardo Carvalho de Mello

Bernardo Carvalho de Mello (he/him) is a Brazilian national in the 2nd year of his PhD in International Human Rights Law at Newcastle University (UK). He is keenly interested in critical legal approaches to law and concrete solutions to the human rights agenda.