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European Court: Country Can Require Trans People to Get Divorced

European Court: Country Can Require Trans People to Get Divorced


The European Court of Human Rights ruled Wednesday that countries which require married trans people to divorce prior to legally updating their gender are not in violation of the European human rights statutes.

The European Court of Human Rights declared Wednesday that countries can legally require transgender citizens to get divorced before issuing updated identification documents, lest the spouses become a legally recognized same-sex couple, reports U.K. LGBT sitePinkNews.

The Strasbourg, France-based court's decision considered the case of a Finnish national named Hamalainen, who in 1996 underwent gender-confirming surgery. After the country's laws were revised in 2002, allowing citizens to legally update their gender, Hamalainen sought out legal recognition as a woman. Upon trying to file this change with her local registry office, however, Hamalainen was turned away, being told that she could not update her gender without first divorcing her wife.

Hamalainen argued that the registrar's refusal to update her legal gender without first ending her marriage violated three statutes within the European Convention on Human Rights -- articles 8, 12, and 14, which protect a right to privacy, right to marriage, and prohibit discrimination, respectively.

The court rejected that argument and ruled that Hamalainen's rights were not violated, as she was given the option of entering into a "registered partnership" with her wife -- a concept nearly identical to civil unions in the United States.

"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 court said in its ruling.

While Finland does not currently offer the option of marriage to same-sex couples, yesterday's ruling could have implications for the legality of England and Wales' "spousal veto," which requires a transgender person's spouse to sign off on their transition before that individual is granted accurate documentation, in addition to consenting to have their marriage become a same-sex union. If the transgender person's spouse does not consent, they can effectively stall their partner's transition, and may be forced to divorce if the trans partner wants to complete their legal gender transition.

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