The European Court of Human Rights has found that there is no right to same-sex marriage under the European Convention on Human Rights.
In deciding on a case where a Finnish transgendered person wished to remain legally married to their wife after a change of their legal identity from male to female, the Grand Chamber of the ECtHR found that, although the case was not directly about same-sex marriage, it would effectively introduce it in Finland, and that the Finnish governement was within its rights to define marriage as between a man and a woman.
It found that Article 12 of the Convention, which deals with marriage, enshrines the traditional concept of marriage as being between a man and a woman [and] cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples (§ 96).
The applicant, Heli Hamalainen, wished to have their identity number, which is used in official documents, changed to reflect their new legal status – but the Finnish government refused to do this unless the applicant and their wife converted their relationship from a marriage to a civil partnership, or else divorced. Hamalainen’s wife did not consent to either of those options, arguing that to divorce or change their marriage into a partnership would be against the (Evangelical Lutheran) couple’s religious beliefs, and that a civil partnership did not provide the same protections as marriage.
The applicant took their case to the Court, which found in favour of the Finnish government, and subsequently appealed the case to the Court’s Grand Chamber. In their ruling, the ECtHR found that it was not disproportionate to require the conversionof a marriage into a registered partnership as a precondition to legal recognition of an acquired gender, as Finnish Civil partnership provided legal protection for same-sex couples almost identical to that of marriage. The minor differences between the two legal concepts were not enough to render the current Finnish system deficient from the point of view of the State’s positive obligation under Article 8.
In addition, such a conversion would not have any implications for the applicant’s family life as it would not affect the paternity of the applicant’s daughter or the responsibility for the care, custody, or maintenance of the child. The Court’s majority opinion held that: “… the applicant’sclaim, if accepted, would in practice lead to a situation in which two persons of the same sex could be married to each other… [N]o such right currently exists in Finland. Therefore the Court must first examine whether the recognition of such a right is required in the circumstances by Article 8 of the Convention”. The Court ultimately concluded that: “… Article 8 of the Convention cannot be interpreted as imposing an obligation on Contracting States to grant same-sex couples access to marriage.”