The Bulgarian Supreme Court of Cassation (SCC) has recently rejected the possibility for legal gender reassignment of transgender people. In an Interpretative Decision No. 2/2000 from the 20.02.2023, the General Assembly of the Civil Chamber decided that the “objective substantive law […] does not provide for the possibility for the court to admit […] a change of the data concerning the sex, name and unique civil number in the civil status records of an applicant who claims to be transgender.” The interpretative case targeted the contradictory practice of the SCC on the issue and provides binding instructions to the courts concerning all applications, pending or future, for legal gender reassignment. The decision’s reasoning is heavily based on the binding interpretative decision of the Constitutional Court stating that the concept of “sex” is determined at birth and can only have a binary biological meaning.
The SCC followed the approach of the Constitutional Court in framing its reasoning alongside the lines of the traditional social values. In doing so, the interpretative decision arguably undermined its own goal of unifying the future case-law by avoiding the discussion on the right to equal treatment of transgender persons and their protection from discrimination on the ground of their sexuality. Moreover, the legal reasoning fell short of addressing the main violations stemming from related ECtHR case-law against Bulgaria pertaining to the right to private life of transgender people and the balance between public and individual interests.
Balancing General and Individual Interests Against Traditional Values
In the decision, 28 magistrates considered that the Constitution and all Bulgarian legislation are built on the understanding of the binary existence of the human species. Accordingly, gender is determined by birth and is lost with death, and “the concept of ’sex‘ has a meaningful application and determines the constitutional status of natural persons in relation to social relations and specifically to the institutions of marriage, family and maternity.” The legal recognition of gender reassignment can thus potentially lead to the civil registration of same-sex marriages or same-sex parentage which is not permitted under Bulgarian law.
By citing related ECHR case law (including Y.T. v. Bulgaria and P.H. v. Bulgaria), the reasoning of SCC points out that the ECtHR has repeatedly held in its judgments that in determining the existence of a state’s positive or negative obligation under Article 8 of the Convention in terms of legal gender reassignment, the correct balance between the common good and the interests of the individual must be taken into account. However, the SCC pointed out that while the ECHR has precedence over national laws that may violate it, it still occupies a lower rank than the Constitution in the national hierarchy of norms. Hence, the constitutional understanding of the term “sex” has supremacy when it came to the national law. While the meaning of “sex”, including in its relation to family relations, can evolve, such development requires a need of predictability and clarity of is application for the sake of legal certainty. Correspondingly, the SCC reasoned that the “society’s value understandings, shaped by religion and morality, are characterized by stability and resilience as a regulator of behavior, whereby the state’s imposition of legal permissions in conflict with established moral and/or religious norms and principles would be characterized by questionable legitimacy and would compromise their regulatory potential.”
Against this background and the outlined above potential legal consequences pertaining to same-sex marriage and parentage, the SCC considered that the overriding public interest outweighed the interest of transgender applicants in terms of amending civil registers. In addition, given “the manner in which this would be perceived in society, in the absence of public consensus and legislation”, the SCC concluded that legal gender reassignment would be contrary to the public interest. Such a change should be considered admissible only in the case of detailed legislative regulation, which is currently lacking.
The Decision in Light of the Relevant ECHR Case-law and the Principle of Equality
Based on the adopted interpretative decision, it can be inferred that the SCC instructs the courts to refuse to consider the merits of applications of transgender persons for legal gender reassignment without taking into account the specific features of each individual case. Furthermore, courts can do so without considering whether the balance between the common good and the individual interest has been respected. Such an approach omits to consider whether the right to human dignity and respect for privacy would be disproportionately affected and thereby undermines related ECHR case-law as well as the principles of equality and non-discrimination.
21 magistrates provided a dissenting opinion, noting that the cited constitutional decision did not make binding prescriptions to the judiciary on the regulation of the legal status of transgender persons. Transgender persons, intersex persons and other persons for whom gender reassignment is medically necessary are “living human beings and their sex is biological according to the Constitution”. The opinion further states that the legal reassignment of sex is also “not in conflict with the binary existence of the human species” because one does not end up with a “third sex” but instead passes from one sex to the other due to a biological set of characteristics. The biological understanding of the concept of ’sex‘ does not in any way exclude the legal change of the sex of living human beings but only prohibits the possibility of such change for said persons after their death at the request of their heirs. Neither the Constitution nor the ordinary laws prohibit the changing the recorded sex of transgender, intersex and other persons on civil status certificates for medical reasons. Additionally, the cited constitutional decision specifically noted that in the case of intersex persons gender identification may be a ground for changing the sex recorded in civil status records.
The dissenting magistrates further reasoned that in order for the interpretive decision of the SCC to unify the future case-law it had to guarantee the right to equal treatment of transgender persons and their protection from discrimination on the ground of their sexuality. By failing to address this issue, the SCC leaves room for undermining the principle of prohibition of discrimination. Specifically, the decision’s reasoning does not touch upon the legal status of transgender persons who have already changed their sex with or without surgical intervention or hormonal treatment and the compliance of their status with the current law in the country. A related conundrum pertains to such persons’ equal treatment with other transgender people who in the future will not be able to legally reassign their sex and the equal treatment with intersex persons and other persons who need to change their sex for medical reasons.
Concerning the reasoning of the interpretative decision on the role of the ECHR, it needs to be pointed out that based on Article 149(1)1 of the Bulgarian Constitution, the Constitutional Court can rule on the constitutional compatibility of international treaties prior to their ratification. Accordingly, once the ECHR has been ratified, promulgated and entered into force, thereby becoming part of the domestic law of the country, the Constitutional Court, pursuant to Article (1)4 of the Constitution, can only rule on the laws’ conformity with it. As the Constitutional Court itself has pointed in Order No 2/29.04.21 in Const. Case No 6/2021, the Court could interpret the provisions of the Constitution in the light of international law, in particular the ECHR, but it could not rule on the compatibility of an international treaty in force with the Constitution. Likewise, the dissenting opinion in the SCC interpretative decision clearly states that there can be no question of a conflict between Article 8 of the ECHR and the Constitution, and consequently “neither of the two legal instruments ‚overrides‘ the other, including with respect to the biological explanation of the term ’sex‘ given by the Constitution”. The SCC decision is unable to limit the scope of Article 8 of the ECHR by excluding its application to transgender persons in Bulgaria due to the biological explanation of the term “sex” given by the Constitution. Moreover, as pointed above, transgender persons, intersex persons and other persons for whom sex reassignment is medically necessary are living persons and their sex is thus biological according to the Constitution.
The dissenting opinion recalls that in the two cases of Y.T. v. Bulgaria and P.H. v. Bulgaria, Bulgaria was convicted not for the lack of substantive prerequisites in the national law for the right of a transgender person to request the national court to change the sex in the civil status records. Instead, the violation was grounded in the fact that, under the available legal framework, the Bulgarian court had not taken into account the balance between the general public interest and the interests of the individual. The ECtHR further concluded that the national court refused to apply the existing Bulgarian legislation in the light of Article 8 of the ECHR. The Strasbourg Court has also found that the refusal in principle, based on traditional values and Christian traditions, as well as the lack of detailed national legislation, without examining whether the balance between the interests of society and the interests of the individual has been respected, violates Article 8 of the Convention.
Exercise of Subjective Rights Dependent on Civil Status Records
Finally, in order to reach its conclusion, the interpretative decision also uses as an argument the lack of developed procedural pathways for legal gender reassignment in the national system. A relevant question in this regard is whether courts can deny the exercise of rights’ due to the lack of procedures for their realization. In a blog post, Dr. Vassil Petrov, a Judge in the Sofia District Court, reflects on this question in light of the SCC decision. Jurisdiction in administrative law, understood as the power to issue acts binding on citizens and organizations of citizens, is derived from the law. However, competence does not always stem from an explicit statutory provision. As Judge Petrov points out, sometimes jurisdiction arises from an implied (sub-legislative) statutory empowerment. Civil status regulation embodies principles of both private and public legal nature that not should only provide for the possibility of comprehensive protection of the rights and legitimate interests of natural persons through ensuring personal identification but should also ensure the exercise of all rights dependent on such identification. Indeed, Article 46(3) of the Law on Statutory Acts prohibits to interpretatively justify the competence of a public authority to impose criminal, administrative or disciplinary liability in hypotheses where there is no explicit statutory provision. Nevertheless, outside these cases, Judge Petrov concludes, the courts may interpretatively infer the competence of an administrative authority, provided that there is a statutory basis for doing so and no statutory prohibition or legal principle is violated.
Accordingly, courts cannot simply refuse to protect rights because the procedural law does not provide a way for this. The ultimate question then again boils down to the rights and freedoms of transgender people and how these rights are balanced against the public interest. Last but not least, according to the case-law of the Constitutional Court, Article 8 of the ECHR is a directly applicable provision in the domestic law hence implying that citizens can invoke the provision before national courts even without the presence of elaborate national legislation. Following a similar logic, in a number of its older decisions (for instance Decision 205/05.01.2017and Decision 142/28.06.2019) the SCC has remanded cases back to lower courts on the grounds that the national law recognizes the possibility of making a change in the civil status record based on a court decision allowing a change of the original sex. Such reasoning was deemed to be in accordance with the nature of the personal rights recognized and protected by Article 8 ECHR.
According to Article 4 of the Constitution, Bulgaria is a state governed by the rule of law and guarantees human dignity. The rule of law and the irrevocability of human dignity constitute a foundation of and guarantee for fundamental rights and principles, including the right to respect for private life and equal treatment. This constitutional basis entails the universal equality of dignity for all human beings, including transgender people. The recent interpretative decision of the SCC on the legal gender reassignment infers that related cases will continue to be examined, but simultaneously courts are instructed to refuse to consider the merits of transgender applications regardless of the various specifics of each case. Such approach not only undermines fundamental rights and principles but is also ultimately incapable of living up to the earlier reasonings of the SCC stipulating that every national court of all States Parties to the ECHR is also a national human rights court within the meaning of Article 13 of the Convention.