Date when decision was rendered: 3.2.2009

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallito-oikeus

Reference: Report no. 219; 1433/1/08

Reference to source

KHO 2009:15.

Yearbook of the Supreme Administrative Court 2009 January-June

Högsta förvaltningsdomstolens årsbok 2009 januani-juni

Korkeimman hallinto-oikeuden vuosikirja 2009 tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2010

Pages: pp. 127-152

Subject

respect for private life, respect for family life, right to marry, marriage, transsexuals, non-discrimination,
respekt för privatliv, respekt för familjeliv, rätt att gifta sig, äktenskap, transsexuella, icke-diskriminering,
yksityiselämän kunnioittaminen, perhe-elämän kunnioittaminen, oikeus solmia avioliitto, avioliitto, transseksuaalit, syrjintäkielto,

Relevant legal provisions

sections 1, 2 and 5 of the Act on confirming the sexual identity of transsexual persons; sections 1 and 6 of the Marriage Act; sections 1 and 8 of the Act on Registered Partnerships; sections 4-1-2 and 6-1 of the Act on Population Data; section 3 of the Degree on Population Data; sections 6, 10-1, 22 and 106 of the Constitution Act

= lag om fastställande av transseksuella personers könstillhörighet 1 §, 2 § och 5 §; äktenskapslag 1 § och 6 §; lag om registrerad partnerskap 1 § och 8 §; befolkningsdatalag 4 § 1 mom. 2 punkten och 6 § 1 mom.; befolkningsdataförordning 3 §; grundlag 6 §, 10 § 1 mom., 22 § och 106 §

= laki transseksuaalin sukupuolen vahvistamisesta 1 §, 2 § ja 5 §; avioliittolaki 1 § ja 6 §; laki rekisteröidystä parisuhteesta 1 § ja 8 §; väestötietolaki 4 § 1 mom. 2 kohta ja 6 § 1 mom.; väestotietoasetus 3 §; perustuslaki 6 §, 10 § 1 mom., 22 § ja 106 §.

ECHR-8; ECHR-12; ECHR-14; Articles 7 and 9 of the Charter of Fundamental Rights of the European Union

Abstract

X, who was a male to female transsexual, requested that the local population register office makes a decision by which it recognizes X's sexual identity as female.X had been married to a woman for over ten years and the couple had a child.Because of their religious convictions, the couple wanted to remain married.According to the Act on confirming the sexual identity of transsexual persons, the post-operative gender of a transsexual person who is married can be recognized and entered in the population register, if the spouse gives his or her consent.Once the registration has been made, the marriage is converted into a registered partnership between a same-sex couple without any additional procedure.Because X's spouse had not given her consent, the local population register office rejected X's request.X appealed to the administrative court which agreed with the local register office.In her appeal to the Supreme Administrative Court, X claimed that in making the registration of post-operative gender conditional to the consent of the spouse and in forcing a couple to convert their marriage into a registered partnership, the Act on confirming the sexual identity of transsexual persons was discriminatory and violated the respect for private and family life.X also argued that the relevant provisions of the Act should not be applied because they were in evident conflict with constitutional rights and the Constitution Act.

In its decision, the Supreme Administrative Court discussed at length the development of the case law of the European Court of Human Rights concerning transsexuals and the question as to what extent it falls within the appreciation of the state to regulate the right to marry for transsexuals.The Supreme Administrative Court noted that the Finnish legislation permits registered partnership between same-sex couples but not same-sex marriage.It then pointed out that the question of amending the institution of marriage by defining it in gender-neutral terms contains conflicting issues pertaining to ethical and religious values, and this kind of a question must be resolved by an Act of Parliament.In the Act on confirming the sexual identity of transsexual persons, the legislator has wanted to retain the traditional concept of marriage as being between a man and a woman, making it however possible to register a married transsexual person's post-operative gender on the consent of the spouse.The marriage then continues as a registered partnership which in legal terms is nearly equal to marriage.The Supreme Administrative Court considered that, in assessing the fair balance between transsexual persons' right to private life on the one hand and the prevailing concepts and values related to family law on the other, the current solution, in the form of the provisions of the Act on confirming the sexual identity of transsexual persons, did not exceed the margin of appreciation allowed to States Parties to the ECHR.The Court also found that the application of the provisions in this case was not in evident conflict with the Constitution Act.It concluded that, on the whole, X had been ensured her right to private and family life as prescribed in the Constitution Act and the ECHR, taking also into account Articles 12 and 14 of the ECHR and the case law of the European Court of Human Rights.

See also the case of H. v.Finland (Application No. 37359/09), judgment of the European Court of Human Rights, 13 November 2012.

18.11.2009 / 15.11.2012 / RHANSKI