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Thursday, January 21, 2016

Hämäläinen v. Finland: Passports and LGBT Rights

There is a lot of buzz right now among Americans abroad concerning a new provision in US law that allows the Internal Revenue Service to ask the State Department to revoke, or refuse to issue, a US passport for non-payment of US taxes.

This is one that deserves some thought before getting out the pitchforks and prodding the behinds of the politicans who voted for it.  My visceral reaction is that this is a bad move on their part because it is perceived as yet another agressive move by the US government against the American disapora - the 7+ million Americans living abroad.  Where this population is already disgruntled and upset (and in some cases almost violently angry), this is not going to improve matters since many Americans abroad see this as a direct attack on them.  The US government should (in my view) be taking that very seriously.  Clearly they aren't. I invite you to read  Americans Abroad: A Disillusioned Diaspora? by Dr. Amanda Klekowski von Koppenfels which has a fine summary of the situation.

How people feel about this is one thing;  what recourse they have is another.  Before I post I would like to answer some questions I have about whether or not this is legal from either the standpoint of international human rights law or US domestic law.  That means reading cases.  And the core question I have as I read is this:  Can a state of citizenship deny an individual a passport thus preventing him/her from leaving or returning to that country of citizenship?  If so, on what basis can a state do this?  I will post when I feel that I have answered that question to my satisfaction.

However, sometimes the journey to answer a question reveals cases that would never ever have occurred to you because you didn't even know there was an issue that needed to be resolved by a court.

 Hämäläinen v. Finland was heard by the European Court of Human Rights in 2012 and the Court issued its decision in 2014.

The plaintiff in this case claimed that there was a violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms by the Finnish government.  Here's the background:
Finnish citizen Heli Maarit Hannele Hämäläinen, who was born a man and married a woman but later underwent gender transformation surgery to become a woman, wanted her personal identification number changed to reflect that she was now in fact a woman and not a man. To do so, she needed her wife’s consent in order to legally become a woman, since that procedure would automatically have transformed their marriage into a legal civil partnership. 
The wife, citing her strong religious conviction that marriage lasts forever, refused to have the marriage turned into a civil union and therefore did not sign Hämäläinen’s application for change of legal gender. Hämäläinen was then left with two choices: to remain legally a man or to divorce her wife. Unwilling to do either, Hämäläinen turned to the courts, arguing that denying her a female personal identification number because she continued to be married to her wife constituted a violation of her human rights as guaranteed by article 8 of the Convention.
Under Finnish law a married person cannot legally change his or her gender without the approval of the spouse.  Finland does not have gay marriage, only civil partnerships for gay couples.  Because the spouse refused to give her permission for the gender change and Hämäläinen didn't want to get a divorce, Finland refused to legally recognize Hämäläinen as a woman - something the Finnish state would have done if Hämäläinen had been single (unmarried). 

The European Court of Human Rights ruled in favor of Finland and you can follow the link above or google the case to read why they ruled the way they did.

So how did I stumble on this case while looking up instances where the state revokes or refuses passports to citizens?

Because one of the not-obvious consequences of Finland's decision (which now has has been blessed by the ECHR) is a problem with her passport.   Hämäläinen says that she can no longer travel because her passport continues to say that she is male and she cannot get that changed legally.



Anonymous said...

Re taxes(/penalities) and passport restriction, I wonder if this isn't a 21st century isolationistic American take on debtors' prison.

Anonymous said...
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