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Opinion: Proposed transgender laws are good news for lawyers – not couples

Ireland proposes making trans people in existing marriages divorce as a pre-condition for recognition in their new gender.

Michael Farrell

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.

Read: ‘I will stay married’: Transsexual woman defiant after court ruling

Read: Revised bill would allow people to legally change their gender at age 16 or 17

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Michael Farrell

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