The recognition of gender identity in civil law Swedish styled jurisdictions

There has been a scandal about the Swedish practice where sterility is required as a precondition for the legal recognition of gender identity of a transsexual individual. Several medical professionals state that this practice is fundamentally wrong. 

However, unfortunately this is a wider problem in Europe. Finland has been a part of Swedish realm and exercised the Swedish Gustavian constitution of 1772 also during the autonomous Grand Duchy period within the Russian Empire till 1919 when a new republican constitution was issued. We continue the same civil law system as Sweden does. We have still some Swedish laws in use.

The issue has been active in Finnish domestic politics too. Ms Martta October, a special aide of Minister of Social Services Maria Guzenina-Richardson (Social Democratic Party) has resigned over a controversy over sterilisation of those undergoing gender re-assignment surgery. The aide had called for a change in legislation on the mandatory sterilisation of those undergoing gender re-assignment surgery.

A similarity between Finnish and Swedish "Trans laws" are the preconditions of sterility and singleness of an applicant. In Sweden you must divorce before you can have the gender recognition, although in Sweden there is a gender neutral marriage, and in Finland a consent to a subsequent annulment of marriage and establishment of a registered partnership by the other party of the marriage. In Finland the trans law, Act on legal recognition of the gender of transsexuals (563/2002) is a lex generalis law and gives way to lex specialis laws, special laws like the Marriage Act (234/1929), Act on Registered Partnerships (950/2001) or Paternity Act (700/1975).

Any provision enacted in a special law overrules that provision enacted in a general law. In trans law there are no provisions about the paternity of a transwoman but there is a weak source of law in the legislative history, in the government law bill HE 56/2001 vp where the legislator states that the already established paternity by the Paternity Act continues as well as the maternity found by natural law. This is the case in general but there is a legal trap.

Namely, in annulment process we use a general law 563/2002 where there is that protected continuum of relationship if the other party of marriage consents. Then the rights are transferred to a new legal form of that relationship ensuring e.g., the widow's right to the pension of the deceased. The marriage is annulled simultaneously as the registered partnership is established. It is like a case where the marriage never existed.

How about the established paternity by the Paternity Act section 2? 

"Section 2—Presumption of paternity on the basis of marriage (351/1980)

The husband is the father of a child born during marriage. If the marriage is dissolved before the birth of a child due to the death of the husband, he is the father of the child if the date of birth of the child after the dissolution is such that the child could have been conceived during the marriage. However, if the mother has entered into a new marriage before the birth of the child, the latter husband is the father of the child."

 In the Act on Registered Partnerships section 9 (1) is enacted:

"Section 9(1) The provisions of the Paternity Act (700/1975; isyyslaki) on the establishment of paternity on the basis of marriage do not apply in a registered partnership, nor do any other provisions applicable to a spouse exclusively by virtue of his or her sex." 

As the marriage is annulled, also the legal effects of that marriage are annulled as well, as those rights are not included in the special law, Act on Registered partnerships. That negation of paternity act section 2 is written law and it cannot be interpreted another way. That is the very essence of our Swedish civil law system. There is no room for common law here. In Roman law lex specialis derogat lex generalis.

What is the legal effect of the general law, Act on legal recognition of the gender of transsexuals (563/2002) to the future legal establishment of parenthood? 

In the case of a transsexual man, a mother of a child, after his gender recognition, he may marry a woman, become a husband and a father in accordance with Paternity Act section 2 in spite of the biological origin of that child. Finnish legislation does not recognize biological parenthood. In spite of a Danish unknown sperm donor the husband, and a mother of a child is a father of this new child born in wedlock.

In the case of a transsexual woman, a biological source of deep-frozen sperm cells, cannot father a child legally even it is possible technically. In Finland the fertility clinics have declined to assist transwoman-woman couples because of that sterilization precondition of the trans law even in Finland generally woman pairs can have fertility clinic services legally. And this transwoman-woman pair could have that service but with other man's sperm cells. Legal sterility makes those deep-frozen sperm cells of a transwoman outlaw. Like in Nazi Germany those must be destroyed.

Having biological children is not a human right nor is it protected by Finnish law. One must be aware of these legal quagmires. But in Finland a legal consequence of being disqualified of the legal recognition of gender is a passport with a gender marker in accordance with your BIRTH GENDER. So the only way to have your gender marker amended in your passport is to knuckle under the demand of the legal gender recognition with those preconditions where your personal identity code is changed to match with your phenotype gender.

This may be difficult to understand for persons coming from common law juriscictions like England & Wales. In a common law jurisdiction you can fill out a note, a statutory declaration or a deed poll where you can change your names and the gender marker of a passport without a gender recognition of Gender Recognition Act (GRA). The reason for GRA is the amendment of a birth certificate to the opposite gender of that in the original birth certificate. It means that you may marry again in accordance with your new gender and that is why the old marriage is annulled at the moment of gender recognition. And that is why the plaintiffs Parry & Parry lost their case in European Court of Human Rights against the UK in GRA case. It is possible to stay married without the amendment of one's birth certificate and yet have a female identity recognized in official documents like it happens in the case of Ms Wena Parry. 

In England and Wales you will get an amended birth certificate which equals a transwoman with other ciswomen, i.e. girl born women. There is no segregation between trans and cis after the gender recognition process is over. In Finland, however, a new special law was enacted in 2009, Law on Population Register and Population Information Centre Certificate Services (661/2009). In Finland you can have a recognized transsexual identity only. But you must terminate your marriage and parental rights in order to acquire that identity. (See Appendix)

It is a full failure. 

Appendix

Law on Population Register and Population Information Centre Certificate Services (661/2009). (My own translation)

Section 12 

Correction and amendment of a personal identity 

A personal identity number registered in the Population Register will be altered, if it is technically incorrect, or if the data on birth date or gender is wrong. The magistrate in whose area of ​​jurisdiction is to decide on the notification. Magistrate must give the person concerned or his legal representative an opportunity to voice their opinion on the matter. This person should be informed of the notification.

A personal identity number registered in the Population Register may be amended, if 

(1) the change is absolutely necessary to protect the person in those situations where his or her health or safety is clearly and permanently threatened, 

(2) someone other than the holder of the identity has repeatedly abused the identity number and the abuse has caused significant economic or other harm to the right holder and the continued adverse effects due to misuse can actually be prevented by the change of the personal identity number, 

(3) in accordance with the Act on legal recognition of the gender of transsexuals (563/2002) has been determined that the person must belong to the opposite sex. 

In the cases referred to in subsection 2 (1) and (2) the Population Register Centre take the decision on change of personal identity.In the cases referred to in subsection 2. (3)  it shall be taken by the magistrate under the Act on legal recognition of the gender of transsexuals. The person must submit a written request to the identity change of the above-mentioned authority. 

Section 13 

Personal information recorded in the system 

The following data on persons subject to registration shall be registered in the Population Register: 

(1) full name; 

(2) personal identity number and technical identification and electronic client, 

(3) place of residence and place of residence there, temporary housing, and such information about a property, building and apartment specifying the person's domicile and residence there, 

(4) the parents' full names and personal identification numbers, 

(5) marital status and details of opening and dissolution of marriage or registered partnership and registered partnership, 

(6) the spouse or registered partner's full name and personal identity number, 

(7) the child's full name and personal identity numbers, 

(8) data on children's and parents' family status; 

(9) information on child custody and what the custody include; 

(10) data on legal adoptions, 

(11) any restrictions on the capacity to act, guardianship and power of attorney and the guardian or authorization identification data, 

(12) information on the care of children, 

(13) the birthplace municipality or place of birth and birth state, 

(14) citizenship; 

(15) information on the establishment of a transsexual person's gender,

(16) data on death or day of the Declaration of death, 

(17) information on the local registration authority, 

(18) provide data on voting rights needed for elections and referendums; 

(19) information on membership in a religious community referred to in the Freedom of Religion Act (453/2003); 

(20) language and chosen contact language, 

(21) restrictions under the Data Protection Act and this Act on the disclosure of information from the Population Information System, and 

(22) of the person submitted information on the address and other contact information, and profession. 

Detailed rules for the registration of the information referred to in subsection 1. and registration of the amendments, changes and corrections that apply to them and on the detailed contents of the data issued by Government decree. 

Section 40

Limitations concerning disclosure of information on amending the gender data in the Population Information System related to the establishment of a transsexual person's gender and information about a former personal identity number and any previous names as he or she had immediately before the establishment of gender identity may be disclosed only

(1) to an authority with the right to process the data based on it to perform a task, an action or task prescribed by or under the law relating to the person's rights or obligations;

(2) to any other person, company or organization requesting the information for a specific purpose and as necessary need this information to identify the person in question or to clarify his or her personal and family status or competence to act.