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IRELAND’S CONTINUED FAILURE to recognise transgender persons in their preferred gender was one of the issues raised by the UN Human Rights Committee when it questioned Justice Minister Frances Fitzgerald in Geneva recently. It was the second time the world’s top human rights monitoring body had raised the issue with Government representatives – they had brought it up during hearings on Ireland’s human rights record in 2008 as well.
This time the UN Committee members focused on the requirement in the Government’s Heads of a Gender Recognition Bill that married trans persons would have to divorce as a pre-condition for recognition in their new gender. In their concluding observations on Ireland, they expressed concern about this proposal, and called for the right to legal gender recognition to be guaranteed without any requirement for the dissolution of existing marriages or civil partnerships.
The Council of Europe’s Human Rights Commissioner, Niels Muiznieks, had also called on the Government to drop this requirement.
A conservative judgment via Finland
But the Government’s position appeared to get support from an unexpected quarter a week before the UN Committee’s recommendations were published. The 17-judge Grand Chamber of the European Court of Human Rights in Strasbourg, somewhat surprisingly, rejected a complaint by a Finnish trans woman, Ms Heli Hamalainen, that under Finnish law she and her wife would have to end their 18-year marriage and enter into a civil partnership as a pre-condition for recognition of Ms Hamalainen’s acquired female gender – she had previously been registered as a male.
Finland does not allow same-sex marriage and the Strasbourg Court, in a very conservative judgment, held that the Finnish legislation struck a fair balance between the rights of Ms Hamalainen and her spouse on the one hand, and preserving traditional opposite-sex marriage on the other.
On closer inspection, however, the Strasbourg Court’s decision does not assist the Irish Government. The Finnish law allows for a direct and seamless conversion of a marriage into a civil partnership with the result that “the original relationship continues with only a change of title and minor changes to the content of the relationship”. For pension and other purposes the civil partnership would be taken as commencing on the date of the couple’s original marriage or vice versa. And according to the Court, there were very few differences between the effect of one institution and the other.
Forced to live apart for four years
Contrast that with the Government’s proposals in the current Heads of Gender Recognition Bill, where a couple would be required to divorce, involving living apart for four years, convincing a court that their relationship had irretrievably broken down, dividing their property and making arrangements for the custody and access to their children. Good news for lawyers, but not for the couple or their children. If their relationship had not broken down beforehand, it would be very likely to do so while going through this pointless exercise.
If anything, the Strasbourg Court’s decision in Hamalainen v Finland undermines the Irish Government’s position. The European Court stressed that it was the virtually seamless transition from marriage to civil partnership with minimal effect on the couple and their child that persuaded the judges to dismiss Ms Hamalainen’s claim. Had the transition been more onerous and demanding, they would have found it harder to accept the Finnish government’s position.
And if it became clear that the couple would have to live apart for four years, establish that their relationship had broken down and go through a full-blown divorce, it seems unlikely that they would have regarded that as striking “a fair balance … between the competing interests” as they said in the Hamalainen case.
‘A breach of fundamental human rights’
And the Strasbourg Court may not take such a conservative view for much longer. There was a powerful dissent by three of the judges, who based their position firmly on the Court’s own core judgment on transgender rights in Christine Goodwin v UK, decided in 2002. The minority also noted that the Constitutional Courts of Austria, Germany and Italy, which do not allow same-sex marriages, have nonetheless held that laws requiring trans persons to dissolve their marriages as a pre-condition for legal recognition are in breach of fundamental human rights.
As in many courts, dissenting judgments are often more cogent and better argued than those of the majority and come to be accepted a few years later. It may not be long before the Strasbourg Court sets the real and tangible pain suffered by trans people who are refused recognition in their lived-in gender above some notional damage to the traditional model of opposite-sex marriage. And it may not be much longer before it recognises same-sex marriage as a fundamental right protected by the European Convention on Human Rights.
Michael Farrell is the senior solicitor with Free Legal Advice Centres (FLAC) and represents transgender woman Dr Lydia Foy, who has been seeking legal recognition in her female gender since 1993.
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My wife and I are one of these couples and I am SO angry that we have been placed in such a position. Very few families remain intact after the spouse begin to live in their true gender identity, regardless of whether the transgender partner goes through full transition. To penalise the couples that DO survive to become a same – sex couple is like the government spitting on our marriage.
We made vows, both secular and religious, and to have to divorce then take up a civil partnership would have a HUGE impact on us and our child. It would also place us in the position of committing perjury, as our marriage has NOT broken down in any way.
This is one reason that we are very supportive of the equal marriage referendum next year, as well as wishing for our LGB friends to have their relationships acknowledged with the same respect as their heterosexual family and friends.
It’s sick to think people can’t just be people. In Ireland it’s not just 4 years. It’s at least 4 out of the last 5 years you must be separated to prove “divorce Is needed” so that’s 5 years before you can sort the problem. The idea that we live in a country that doesn’t respect the rights of the people it carries Is terrible, the fact that we aren’t screaming in the streets about this is madness. The fact that the church doesn’t recognise peoples free will to choose there own sexual exploits Is none of their business, the fact that all my life I’ve seen people being discriminated against for the pettiest things is outrageous. It’s not the dark ages, it’s the best time in human history to start to fix these problems never before have we had such communication with the world. A marriage is a marriage, if you find someone to marry and they also want to promise themselves to you, then what’s the problem? If they change gender mid way through if you still are both very happy then why does it matter. It’s time to grow up. A persons gender has never influenced my view of them, and if everyone I knew changed gender tomorrow I wouldn’t view them different. If they were married single or in a relationship that’s between them and there respected partner or lack of, but it’s all their business. Gender is a construct of human development, a point if view that is becoming archaic. Who we are and what we are should be ours alone to label, and no one else.
What a waste of story space. Do what you want in your own home and keep it personal, I don’t want to see hear read a thing about it. The world does not want to listen or vote on ridicules proposals.
Marriage and marriage rights are for the people who invented it in the first place. Ordinary, normal men and women. With them we get family’s. END OF story.
If ye want to vary from that then call it something else and be quiet about marriage. Marriage and its rights are for a man and a woman, and then hopefully children will come to be and the world will continue
I’m guessing that you’ll be voting ‘no’ in next year’s referendum then.
Fortunately for the rest of us, your attitude is increasingly rare, and is mainly a source of wonderment, rather than fear.
You’ll still get “family’s” (sic) – equal access to civil marriage won’t affect the marriage rights of heterosexuals in amy shape or form.
Sorry, if you don’t want to read about this issue then don’t click on the link. This is about people’s LIVES, things that affect real NORMAL people and their families.
When we got married nearly 30 years ago the Internet was in its infancy and our knowledge of transgender issues was close to nil. We married in good faith (and in the RCC ) and built our lives in the same way as countless others, and we have a beautiful child who makes us very proud. However the issue does not go away just by denying it.
Just like LGB issues, the only thing that happens when you hide it in a closet (usually you are pushed in there because someone like you objects) is that it festers and ends up causing tensions that can lead to self-harm or even suicide. Over 40% of transgender people have contemplated taking their own life. This statistic alone should show that attitudes like yours are extremely unhelpful and outright prejudicial.
I’m afraid your opinion in in the minority, the majority of voters are a lot older and wiser than you may think and we will have to see when the votes are counted. Populist agendas do well on social media “in my humble opinion”.
It most certainly does as it changes the definition of marriage. Why not find another name for this proposed change and see what rights you can attach to it.
@deer. Who was that reply to?
Helen, this affects everyone that is married and its up for vote. I’m a voter and like to be informed about what I vote for.
Sorry, it was Chris
I think what Helen is trying to inform you of is that if you vote against marriage equality, you are voting for breaking up her marriage – a marriage that has survived what many marriages wouldn’t. And if I may say so, I think that would be pretty mean of you.
@Max, no I will be voting in favour of same sex marriages. I don’t see how anything I said would give you that impression. Nothing against gay people, just don’t agree we should have to call men “she” and “her” just because he declares he was “born in the wrong body”. Deal with reality mate, you’re a man. If he’s gay, that’s fine. But no denying that he’s a man.
David, my reply was to deerhounddog, but nonetheless:
Am I right in thinking that you believe that there are two discrete genders, male and female?
Perhaps you are unfamiliar with the biology of gender and the existence of intersex people.
Even if your ideas of gender are congruent with what we know of biology, I have to ask – what exactly do you lose if somebody else has their gender recognised?
@deerhounddog – you say “It most certainly does as it changes the definition of marriage.” How?
All legislation is good news for lawyers. The need a break…times are tough.
This is bad news for the BLT community.
Oh, a comedian.
A dissent of three of the judges does not indicate a wind-change when there are 17 judges on the court.
If anything, such a small dissent makes the decision seem stronger.
Can we just wait until the marriage equality referendum, and in the event that we pass it, then this won’t be needed anyway. Cart before the horse in a big way. As the current law stands, it makes perfect legal sense to force people to divorce, as changing your gender would mean that you were ineligible to marry under the law of the land. However, i think we’re about to change that so lets just cool our jets for a bit and get this sorted.
Changing your gender would mean that you were ineligible to marry? So if I change my gender, does that mean that I wasn’t actually insured to drive a car all those years as my application for insurance had my birth gender on it?
Utter nonsense.
Look. I’m in favour of marriage equality. Let me just say that from the off. But yes, absolutely, under current law, changing your gender would make you ineligible to marry if the person you were marrying was the same gender as you.
A man and a woman get married. Under the law of the land that is acceptable. The man then (or the woman) identifies as the opposite gender, and under new laws of the land has their gender changed. So now the marriage has 2 men (or 2 women) as legally recognised by the state. But the state doesn’t allow same sex marriage, so those marriages are invalid under the law of the land, so they must be dissolved. I’m not saying it’s right, but i’m saying that these new laws are trying to solve a problem that hopefully won’t exist as soon as the marriage equality referendum happens, and in the meantime is causing far more problems than it solves.
And an aside -you can be absolutely sure that if you lie about your gender on any form of insurance (especially health insurance), the insurance would reserve the right to refuse you cover on the grounds of the fact that you were lying.
Jim,
The analogy I’m trying to make is this.
Yes if I lie on my insurance form, cover can be refused. For most of my life, I put “male” on insurance forms. I now put “female”, and the state fully backs me putting “female”.
Does this mean I lied when I put “male” on those old insurance forms? Does this mean that I did not actually have cover all those years? Does this mean that my insurance contracts under my male identity were invalid? Does this mean that insurance companies can come after me for payouts they made on the basis that I “lied” about my gender on the application form?
No – it does not.
And so it is with marriage. One of the participants in the marriage put (e.g.) “male” on the contract and, as with my insurance example, just because they now identify as “female” it doesn’t make the contract invalid.
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