Legal Gender Recognition and Free Movement in the EU
In Defence of the Advocate General Opinion in Shipov
Earlier this month, Advocate General Richard de la Tour delivered his Opinion in Shipov, a case before the European Court of Justice (ECJ) dealing with the gender recognition rights of a trans woman who lives in Italy but is originally from Bulgaria, where legal gender recognition is generally impossible. Just two years ago, the Bulgarian Supreme Court of Cassation reaffirmed this practice, basing its reasoning on a 2021 Constitutional Court decision that held that “sex” is a binary biological category and determined definitively at birth. Given these recent judgments, the AG opinion – should the ECJ ultimately follow it – could have far-reaching implications for the rights of trans persons in Bulgaria and beyond.
Trans rights before the ECJ
The engagement of the ECJ with the rights of trans persons can be traced back to 1996 and its landmark ruling in P v. S and Cornwall CC. In that case, the Court held that discrimination “arising from the gender reassignment” of a person constitutes discrimination based on sex and is contrary to EU law. Since then, the ECJ has developed a steady line of case law favourable to trans applicants (KB, Richards, MB, Mousse, Deldits), touching on issues ranging from pensions, job dismissals, and (same-sex) marriages to data protection. More recently, however, in Mirin, the Court for the first time confronted a free movement question in a case involving a trans Union citizen.
In Mirin, the Court held that the non-recognition of the change of legal gender of a trans Union citizen across Member States could cause “serious inconvenience” and thereby impede the exercise of EU free movement rights. The pending case of Shipov, however, pushes the boundaries further. Unlike in Mirin, where the applicant had already completed a legal gender recognition procedure in another Member State, the applicant in Shipov has not undergone such a procedure anywhere. Accordingly, the Court is asked to address a novel and particularly sensitive question: whether EU law requires Member States to provide their trans nationals with a means of changing their legal gender to reflect their gender identity – a matter that cuts to the heart of national competence in the field of personal status.
The facts of Shipov
K.M.H., a trans woman of Bulgarian nationality, was born in Bulgaria and registered as male, with a first name, patronymic, and surname corresponding to that gender. After exercising her free movement rights, she moved to Italy, where she lives with her long-term partner. She has begun transitioning and explained that the discrepancy between her female identity and her male documents causes daily problems, particularly in finding work. Thus, she applied to a Bulgarian court for a declaration that she is female, for her name to be amended accordingly, and for that change to be reflected in her birth certificate. Her application was, however, dismissed, as Bulgarian law does not allow amendments to civil status documents “on psychological bases”. After a series of unsuccessful appeals, the case reached the Bulgarian Supreme Court of Cassation, which made a reference for a preliminary ruling to the ECJ, asking, essentially, whether EU law precludes national legislation that rules out any possibility of amending a trans person’s civil status documents to reflect their lived gender.
The AG Opinion
On 4 September 2025, Advocate General Richard de la Tour delivered his Opinion, explaining that the situation falls within the scope of EU free movement law. The applicant had exercised her free movement rights, resides in a Member State other than that of her nationality, and seeks to live, work, and move freely under an identity resulting from the legal recognition of her gender identity in her state of origin, while also securing her family life with her Italian partner (para. 46).
He then considered whether Article 21(1) TFEU (which guarantees free movement of Union citizens), read together with Article 4(3) of Directive 2004/38 (which requires Member States to issue or renew an identity card or passport) is breached by Bulgaria’s dismissal of the applicant’s claim. According to the Advocate General, identity documents must reflect an individual’s lived gender identity, rather than only the sex recorded at birth. Names and personal identification numbers should also be updated to ensure consistency. Otherwise, documents that do not correspond to a person’s lived gender create doubts about their authenticity and constitute an obstacle to free movement. This obstacle arises not from conflicting civil status documents (as in Mirin) but from the mandatory indication of the sex recorded at birth in identity documents without the possibility of alignment with the person’s lived gender (paras. 67, 75 and 76).
De la Tour further argued, that a Member State cannot invoke the absence of a national legal gender recognition procedure to deny its nationals identity documents necessary for exercising free movement rights (para. 77). Importantly, in legal systems where the birth certificate remains the reference document throughout a person’s life (as in Bulgaria), an identity card reflecting a person’s lived gender can only be issued once the change is officially registered. In such cases, therefore, in order to prevent obstacles to free movement, there is an obligation to legally recognise the lived gender identity of the person concerned and to record it in the birth certificate so that identity documents can reflect that person’s gender identity (para. 82).
The Advocate General also recalled that, for such obstacles to be justified, national measures must not only pursue a legitimate aim but also comply with the EU Charter of Fundamental Rights, which needs to be interpreted in line with the ECHR (para. 89). Relying on ECtHR case law, he recalled States’ positive obligation under the ECHR to provide a quick, transparent, and accessible framework for legal gender recognition (para. 90). Therefore, refusal to issue identity documents reflecting a person’s lived gender identity cannot be justified, as that would violate Article 7 of the Charter. Finally, the Advocate General confirmed that conditioning gender recognition and the issuing of corresponding identity documents on gender confirmation surgery is incompatible with EU and ECHR standards (paras. 98-100).
The merits of Shipov
One could argue that Shipov is a relatively straightforward case, as it arises from a specific scenario that calls for a specific solution: in the Member State concerned there is a complete absence of any legal gender recognition procedure, and identity documents can be amended only if the person’s legal gender is first changed in the birth certificate. According to the Advocate General, a trans Union citizen must be able to have her lived gender identity reflected in her identity documents in order to exercise her free movement rights under EU law; if this can only be achieved through the prior amendment of her birth certificate following a legal gender recognition procedure, EU law requires that such a procedure be permitted.
At first glance, this appears to be a far-reaching solution, yet one that the particular circumstances of the case render inevitable. The difficulty, however, is that because this reading of EU law seems to impose on Member States an obligation to allow legal gender recognition within their legal orders, it may be perceived as an unwarranted interference by the EU in a domain (a person’s civil status) that falls within Member State competence. A second reading, however, reveals important nuances in the Advocate General’s Opinion.
Let’s “unpack” the Opinion. According to it, the general rule remains that EU law does not require Member States to provide for legal gender recognition, as, indeed, this is a matter for the Member States to decide; it suffices that identity documents used when exercising free movement reflect the lived gender identity of their nationals. It is only in Member States like Bulgaria – where this is impossible without first amending the birth certificate – that EU law also requires such an amendment, which in practice presupposes the existence of a de jure or de facto legal gender recognition procedure.
Taking the “safe route”
The approach adopted by the Advocate General in Shipov clearly resembles his previous Opinion in the pending case of Cupriak-Trojan and Trojan (analysed here), which concerns the cross-border recognition of same-sex marriages. In Cupriak-Trojan and Trojan, a male same-sex couple who married in Germany sought to have their marriage certificate transcribed in Poland. The Advocate General argued that EU law simply requires Member States to recognise the effects of same-sex marriages contracted abroad. That recognition, however, need not necessarily take the form of recognising the relationship as a marriage, provided it is acknowledged in some legal form. For this, he drew on ECtHR case law, which requires States to introduce a legal framework for the recognition of same-sex relationships (e.g., Oliari and Others v. Italy and Przybyszewska and Others v. Poland) and to afford recognition to same-sex marriages contracted abroad, albeit not necessarily as marriages (Orlandi and Others v. Italy and Formela and Others v. Poland). In the same Opinion, however, the Advocate General added that where the only way to recognise the effects of such a marriage is by transcribing the certificate in the national marriage registry (thus recognising the marriage as a marriage), then EU law requires that outcome.
A similarly qualified approach was also adopted by the same Advocate General in Mirin. There, the Advocate General accepted that EU law requires cross-border recognition of a change in legal gender concluded in another Member State, but only for the purposes of establishing the identity of the person concerned, which is necessary for the exercise of free movement rights.
In Mirin, the facts were relatively straightforward, as cross-border recognition was sought only for identity purposes and not in relation to family ties. As argued elsewhere, this allowed the Court to avoid stating clearly whether it endorsed the Advocate General’s qualified approach or whether it requires the cross-border recognition of the change in legal gender for all legal purposes – something which would clearly have wider implications and entail a deeper intrusion of the EU into family law, an area that also remains within Member State competence.
In Mirin, Cupriak-Trojan and Trojan, and now Shipov, the Advocate General appears to adopt a “safe” route, opting for a compromise. While he safeguards the effective exercise of free movement rights, he does so with the least possible intrusion into national competences, requiring deeper interference only where the specific national framework makes it necessary in order to ensure that Union citizens can in practice exercise those rights.
This “safe route” is also evident in the Advocate General’s choice to ground his reasoning in Strasbourg jurisprudence. By relying on obligations already recognised under the ECHR, he effectively anchors the EU law obligations he proposes in a body of case law that is familiar and binding on all Member States. This allows him to extend protection to LGBT Union citizens whilst minimising the appearance of EU law carving out new, autonomous obligations in areas – such as personal status and family law – that remain highly sensitive and thus jealously guarded by the Member States. In Shipov, even the more far-reaching obligation that is imposed, which effectively requires Member States to permit changes in legal gender in their territory, mirrors the obligations already read as arising under the ECHR. In fact, there have already been two rulings (Y.T. v. Bulgaria and P.H. v. Bulgaria) in which the Strasbourg Court held that Bulgaria breached Article 8 ECHR, because of the legislative absence of a legal gender recognition procedure.
Conclusion
It would not be surprising if the ECJ were to follow the Advocate General’s proposed solution in this case. Even though the case does not concern the cross-border recognition of an existing status – a scenario generally seen as less controversial and less intrusive upon Member State competence – but rather prescribes directly how Member States must exercise their competence in the context of personal status, the fact that Bulgaria has already been found by the ECtHR to be in violation of the ECHR for failing to provide what is required here, will make EU intervention less controversial.