By Micaela Peltoniemi, International Health Law Student, University of Groningen, m.m.peltoniemi@student.rug.nl

The treatment of transgender people has been one of the most visible shortcomings in Finnish human rights protection. The barriers to accessing legal and medical transition have been widely criticized, given that Finland’s laws on transitioning have been significantly behind its Nordic peers.This blog post discusses the recently modernized Finnish Act on legal gender affirmation that has replaced the former Act that was adopted in 2002. At last, in 2023 the former 2002 Act has been replaced. ^[i

The former Act: in violation of human rights?

In its 2013 and 2017 Conclusions on Article 11(1) of the European Social Charter (ESC[MS(2] ) on the obligation to remove causes of ill-health as far as possible, the European Committee of Social Rights (ECSR) commented on the fact that, under the former Act, sterilization (or infertility proven otherwise) is required for legal recognition of the gender of transgender people. Despite this remark, the right of access to health care was considered adequate to find the situation in Finland to be in conformity with article 11(1) ESC. ^[ii] In the 2021 Concluding Observations for Finland, the Human Rights Committee (HRC) expressed similar concerns. ^[iii] In addition, the HRC was concerned about the otherwise lengthy and burdensome process for legal gender recognition, the fact that minors have no access to the procedure and the medically unnecessary procedures performed on intersex children. ^[iv] Similar and further criticism has been given, inter alia, by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe in 2012, ^[v] by the Committee on the Elimination of Discrimination against Women (CEDAW)  in 2014, ^[vi] by Amnesty International in 2014, ^[vii] jointly by two national LGBTQIA organisations, Trasek and Seta, in 2014, and by multiple States in the UN Universal Periodic Review 2017. ^[viii] In its judgements Y. v. Turkey (2015) and A.P., Garçon and Nicot v. France (2017) the European Court of Human Rights (ECtHR) found that the sterility requirement amounts to a violation of article 8 of the European Convention of Human Rights (ECHR). ^[ix]

The new Act

Preparations for a new Act were first initiated in 2013. However, this proposal developed very slowly and eventually died out. In 2019, new major steps were taken as the Ministry of Social Affairs and Health started working on a new Act. In the same year Trasek, one of the two above-mentioned national LGBTQIA organizations, [MS(3] started the Translaki 2019 (Trans Act 2019) campaign . This campaign had four aims:

1. Legal gender should be based on self-declaration, not a lengthy medical procedure conducted by medical practitioners
2. There should be no requirement of sterility
3. Minors should be allowed to determine their legal gender with the approval of a guardian (medical transition would still be separate)
4. Discussions about a third legal gender should be opened.

In 2021 a citizens’ initiative “Oikeus olla” (the Right to Exist) gathered the required support by 50,000 citizens within two days and was referred to the Finnish Parliament, where it was eventually joined with the proposal that started in 2019. ^[x] The initiative had similar demands to the Translaki 2019 campaign, with the addition of the required removal of the “trans registry” where people who have legally corrected their gender are registered, and the removal of the right of a partner to deny the legal affirmation of gender of a transgender person in a civil partnership. The Finnish Section of Amnesty International has similar demands.

The 2019 proposal was approved by the Government and sent to the Parliament in September 2022. After some minor delays, the new Act was approved by the Finnish Parliament on 1 February 2023.[xi] The proposal has separated legal and medical transition, and thus removed the requirement of sterility and medical assessment. This is a major victory for the Finnish LGBTQIA population.   

A welcome development, but ample room for improvement

Yet, a lot is left to be desired. Most importantly, the situation of transgender and intersex children and youth has not improved at all: underage transgender people have no means to legally affirm their gender, while intersex children may still be subjected to permanent medically unnecessary surgery.[MS(4]  This may be in conflict with the State’s responsibilities under, inter alia, articles 2 (prohibition of discrimination), 3 (best interests of the child), 8 (right to identity), 12 (freedom of expression in matters affecting the child) and 16 (right to privacy) of the UN Convention on the Rights of the Child, article 24 (rights of the child) of the EU Charter of Fundamental Rights and section 6(3) (equality of children as individuals and their right to influence matters relating to them) of the Finnish Constitution[MS(5] . ^[xii] In addition, legal gender remains binary. It perhaps is not surprising that these considerations were left out of the new Act, considering the controversial nature of LGBTQIA issues, in particular in relation to children and to lesser-known identities such as non-binary genders. ^[xiii]

It is to be noted that while Finland has received criticism, concerns, comments and recommendations from various human rights institutions in the past decade, no concrete violation of a specific article has been decided or judged. Exceptions are the ECtHR cases regarding sterilization, but these are not directed directly to Finland and only concern one of the various issues the previous Act had. This shows how a state might technically not directly violate any human rights treaties and still offer inadequate human rights protection. This is highlighted in the present case given the absence of an international treaty that grants transgender people specified, precise and clear rights. The new act is certainly an improvement, but not perfection.

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[i] Laki transseksuaalin sukupuolen vahvistamisesta 563/2002 [Act on Legal Recognition of the Gender of Transsexuals] on 28 June 2002 in Helsinki [in Finnish].

[ii] Council of Europe (European Committee of Social Rights), ‘Conclusions 2013 - Finland - Article 11-1’ (06 December 2013) 2013/def/FIN/11/1/EN; Council of Europe (European Committee of Social Rights), ‘Conclusions 2017 - Finland - Article 11-1’ (08 December 2017) 2017/def/FIN/11/1/EN.

[iii] UNHRC ‘Concluding observations on the seventh periodic report of Finland’ (3 May 2021) UN Doc CCPR/C/FIN/CO/7, paras 20-21.

[iv]  Ibid.

[v]  Council of Europe (Office of the Commissioner for Human Rights) ‘Annual activity report 2012 by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe’ (10 April 2013) CommDH(2013)5, page 8.

[vi] Committee on the Elimination of Discrimination against Women ‘Concluding observations on the seventh periodic report of Finland’ (9 March 2016) UN Doc CEDAW/C/FIN/CO/7/Add.1, para 28.

[vii] ‘Europe: the State Decides Who I Am: Lack of Legal Gender Recognition for Transgender People in Europe’ (Amnesty International, 4 February 2014) <https://web.archive.org/web/20200214093946/https://www.amnesty.org/en/library/info/EUR01/001/2014/en/> accessed 8 January 2023; Niina Laajapuro, ‘Amnestyn Suomen osaston lausunto luonnoksesta hallituksen esitykseksi sukupuolen vahvistamista koskevan lain muuttamisesta’ (Amnesty International [Finland], 12 September 2014) <https://s3-eu-west-1.amazonaws.com/frantic/amnesty-fi/2014/06/Amnestyn-lausunto-translaista-170902014.pdf> accessed 8 January 2023 [in Finnish].

[viii] UNGA Human Rights Council ‘Report of the Working Group on the Universal Periodic Review: Finland’ (14 July 2017) UN Doc A /HRC/36/8. Each State’s recommendations in the following paragraph: Sweden 41 and 100.50, Australia 55 and 100.51, Mexico 100.46, Netherlands 100.47, Portugal 100.48, Spain 100.49, Ireland 100.53.

[ix] Y v Turkey App no 14793/08 (10 March 2015) paras 117-122; AP, Garçon and Nicot v France App nos 79885/12, 52471/13 and 52596/13 (ECtHR, 6 July 2017) para 135.

[x] ‘Oikeus olla - kansalaisaloite oikeudenmukaisemman translain puolesta’ (Kansalaisaloite, 6 April 2021) <https://www.kansalaisaloite.fi/fi/aloite/8320> accessed 8 January 2023 [in Finnish, a Finnish citizens’ initiative]; Ethan, ‘Oikeus olla -kansalaisaloite kerää allekirjoituksia’ (Translaki 2019, 12 April 2021) <https://www.translaki2019.fi/oikeus-olla-kansalaisaloite-keraa-allekirjoituksia/> accessed 8 January 2023 [in Finnish]; ‘Asian käsittelytiedot KAA 6/2021 vp’ (Finnish Parliament, 20 October 2022) <https://www.eduskunta.fi/FI/vaski/KasittelytiedotValtiopaivaasia/Sivut/KAA_6+2021.aspx> accessed 8 January 2023 [in Finnish].

[xi] Originally the Act was meant to enter into force on 1 January 2023. ‘Hallituksen esitys HE 189/2022 vp’ (Finnish Parliament, 28 September 2022) <https://www.eduskunta.fi/FI/vaski/HallituksenEsitys/Sivut/HE_189+2022.aspx> accessed 2 February 2023 [in Finnish]; ‘Translain uudistaminen’ (Finnish Parliament) <https://www.eduskunta.fi/FI/naineduskuntatoimii/kirjasto/aineistot/kotimainen_oikeus/LATI/Sivut/translain-uudistaminen.aspx>  accessed 8 January 2023 [in Finnish].

[xii] These possible conflicts are recognised in the statement by the Constitutional Committee); Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3; Charter of Fundamental Rights of the European Union [2012] OJ C303/1; Suomen perustuslaki 11.6.1999/731 [Finnish Constitution] (1999).

[xiii] Examples of heated discussion and opposing opinions can be found in inter alia Olli Söderkultalahti, ‘Translaki kiehautti tunteet kuumiksi edus­kunnassa – ”Tämä on kyllä viho­viimeinen naula arkkuun”’ (Ilta-Sanomat, 4 October 2022) <https://www.is.fi/politiikka/art-2000009113301.html> accessed 8 January 2023 [in Finnish], and in the dissenting opinion by Antero Laukkanen in the statement of the Legal Affairs Committee.

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