Court of Justice requires EU-wide recognition of gender reassignment

The gender change must be recognised throughout the European Union. And a Member State's legislation that prohibits one of its expatriates from changing their gender is contrary to EU law and, in particular, to the rules on the free movement of persons. This was affirmed by the Court of Justice of the EU in its rulingin case C-43/24.

The case examined by the Luxembourg judges concerned a Bulgarian citizen, registered at birth as male, with a name, personal identification number and corresponding identity documents. She now lives in Italia, where she has started a hormone therapy and presents herself as a woman. The citizen turned to the Bulgarian courts to have it declared that she is a female person and thus to obtain a change of civil status data in her birth certificate. The application was rejected, despite the medical certificate and the court report confirming the claimed gender identity. According to Bulgarian law, the term 'sex' is to be understood in its biological meaning, excluding any change in the indications of sex, name and identification number. The public interest, based on the moral and/or religious values of Bulgarian society, would therefore prevail over the interest of personstransgender.

The case ended up on the table of the Sofia Court of Cassation, which raised its doubts on the compatibility of the national legislation with EU law. The preliminary ruling was therefore referred to the European Court of Justice, which ruled that the national law was contrary to EU law insofar as it did not permitthe modification of the gender data entered in the civil status registers of one of its citizens who had exercised the right to move and reside freely in another Member State, specifically in Italia. The Court emphasises that the competence recognised to the Member States of the Union to issue identity documents cannot be exercised contrary to EU law.

This is because the discrepancy between a person's lived gender identity and the gender data on his or her identity card can hinder the exercise of the right to free movement. This discrepancy can force him/her, in numerous situations in everyday life, such as during identity checks, cross-border travel or for professional reasons, to have to dispeldoubts about his/her identity or the authenticity of his/her official documents, a situation that generates "considerable inconvenience".

For the courts, a restriction on free movement can only be allowed if it is based on objective considerations of general interest and respects the principle of proportionality and fundamental rights, in particular the right to respect for private life. This right protects gender identity and requires the Member States to establish clear, accessible and effective procedures that allow for its legal recognition. Nor is it possible for the domestic court to invoke the constraint posed by the interpretation of its constitutional court if the interpretation is at odds with, and thus hindersthe application of EU law.