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Even so, in my opinion the Court made some manifest errors. Seen through this lens, the relevant consensus changes, to the extent that it actually favours the applicant – according to a 2012 , 24 countries do not require married transgender persons to divorce upon obtaining legal gender recognition (including the six countries that allow same-sex marriage), as opposed to 22 countries that do, with the situation in one country being divided.Germany and Austria stand out among these countries as legal change there occurred as a result of authoritative apex court judgments (the Constitutional Court and the Supreme Court respectively).
In doing so, the Court relied heavily on its judgment in the same-sex marriage case .
In that judgment, the Court rejected the applicants’ marriage claim on the basis that Article 12 defined marriage as a union between a man and a woman, and, in addition, allowed States discretion to regulate the issue.
The Court’s approach is manifestly inconsistent, as it decided that Article 12 applied and did not apply to this case at the same time.
On the one hand the Court relied on the strictures of Article 12 (marriage between man and woman, state discretion) to deny the applicant’s claims under Articles 8 and 12, on the other hand it declared Article 12 inapplicable, because it only concerned the foundational act of marriage and not married life as such.
What matters more though is that, as opposed to the applicants in Schalk and Kopf who demanded recognition of a presumptive right to get married, the applicant in this case benefited from an acquired right, which has to be protected in the interest of legal certainty, which the Court recognized elsewhere as a “an underlying value of the Convention” (This case touches on another grey area in the Court’s case-law, namely that of the material scope of Article 12 and of its relationship with Article 8.
As noted above, the Court held that Article 12 was not applicable to this case (§53), although adjudication under this heading could have been a viable alternative to Article 8 insofar as the applicant’s family rights claim was concerned.
Admittedly, in Finland registered partnership is comparable to marriage in terms of the legal benefits offered.
However, as the Court itself had emphasized on countless occasions when it was occupied to justify its special status, marriage has social and symbolic connotations that cannot easily be dismissed.
Under Article 8, the Court balanced the applicant’s right to legal gender recognition against the State’s interest to protect the traditional institution of marriage.Tags: Adult Dating, affair dating, sex dating