Trans Rights and Gender Recognition before the CJEU

On May 7, 2024, the Advocate General (AG) of the Court of Justice of the European Union (CJEU) issued his Opinion on the Mirin case, currently before the Luxembourg Court. This Opinion manages to uphold a delicate balance between the competences of Member States and of the European Union (EU), which has always been a challenge for cases involving the right to Legal Gender Recognition (LGR) for transgender persons. Yet, the solution offered by the AG deviates from the Court’s previous case-law on LGR, by making it about free movement rather than protection against discrimination, or fundamental rights. It also places the applicant, and those in a similar position, in an administrative situation that is very complex for them and their national authorities to navigate, thereby defeating the very purpose of LGR – an issue that the AG himself acknowledges. A more satisfactory and ambitious alternative would instead be to continue the expansion of the right to LGR under EU law, by framing it as protected under the EU Charter of Fundamental Rights (CFR).

Why Legal Gender Recognition in EU Law?

The division of competences between the EU and its Member States is a constant debate, within which LGR occupies an interesting place. LGR is the procedure by which an individual can apply to change their gender on legal documents such as civil registries and ID documents in order to have their gender identity accurately reflected. In principle, as a matter of civil status, it falls squarely within State competences, as do rules regarding marriages, parentage, and nationality. However, it is well-established that there are limits even to State-exclusive competences, which must not impede the effective implementation of EU Law.

Civil status, of course, matters for at least one very important part of EU Law: the right to free movement, enshrined in Article 21 of the Treaty on the Functioning of the European Union (TFEU). The distinction between EU competence and State competence is therefore not that clear cut in reality, as a State’s particular rules regarding names, parentage, or gender in its records and on people’s identity and travel documents can easily impact the ability of a person to enjoy free movement in the EU. However, gender, among all traditionally recorded components of civil status, has particularly far-reaching consequences, making the troubled sea of competence attribution even more tricky for the CJEU to navigate. Gender considerations still permeate national institutions and public policies. A change in recorded gender raises the question of a change in surname, especially in States where surnames are gendered by default. Many States also have national identity numbers which reflect whether one is assigned male or female at birth. Social benefits and social rights are sometimes differentiated on the basis of the recorded gender, including pensions, age of retirement or parental leave. And of course, this has obvious implications for States which have no legal framework for same-sex marriage, homoparentality, or as with the Mirin case, trans* identities.

The Mirin case: a look at the facts

The Mirin case involves a Romanian-born transman, who later on moved to the UK and obtained dual-citizenship, after which he legally changed his gender before British authorities. Around a year after obtaining the relevant British document recording his “acquired gender” (the term favoured by the CJEU), he asked Romanian authorities to align his Romanian documents accordingly. The request was refused. Although the Romanian legal system in principle allows for an LGR procedure, one must previously obtain a judicial decision. However, this procedure has been criticised by the ECtHR in the past due to its imprecision and unpredictability.

The applicant argued that Romania’s refusal to directly update his status in light of the LGR obtained in another Member State meant the applicant’s Romanian travel documents did not reflect his gender identity. The judicial procedure for Romanian LGR ran the very likely risk of having a negative outcome, at which point there would still be a discrepancy between British documents (with a male gender marker) and Romanian documents (with a female gender marker). This, the applicant argued, hindered his effective use of the right to move and reside freely within the territory of the EU, guaranteed under Article 21 TFEU.

The AG’s proposal: free movement supporting trans rights?

AG De La Tour placed this case along with other cases on queer identities, name changes and free movement in the EU. His Opinion is built around assessing how much of that case law can be transferred to Mirin.

In the arguments for such a transfer of case law, De La Tour notes the following: sex (the term used by the AG in this section of the Opinion) is a constituent element of a person’s identity, just like their name; an EU citizen should not be deprived of their EU rights based on their civil status; it would be consistent with the ECtHR case-law on gender identity to provide effective access to LGR; some Member States not having such a procedure should not be an obstacle; and specific conditions can be established to avoid fraud or abuse of EU law, in the style of Centros.

Against such a parallel with the case law on change of names, the AG notes the specific consequences of a change of legal gender specifically: de facto recognition of same-sex marriage and same-sex parenthood. From there, he builds on Coman and Pancharevo, the cases associated with these two issues, respectively. Coman revolved around a same-sex marriage between a Romanian national and a US citizen, married in Belgium and seeking recognition of their marriage by Romanian authorities, in order for the US national to have right of residence in Romania under EU law. Pancharevo involved a claimant asking that the Spanish birth certificate of her child, born in Spain, should be mirrored in her own state Bulgaria. The child had two same-sex parents registered in the Spanish birth certificate which the Bulgarian authorities did not recognise under the Bulgarian law. The CJEU concluded that Bulgaria was obliged “to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities”. Luxembourg judges had carefully balanced what fell in the State’s competence and EU-derived rights by giving Bulgaria a way to save the face: not requiring that Bulgaria issues a birth certificate, but delivering identity documents. As the AG notes in relation to Mirin decision, this solution has the advantage of having no effect on the civil registers of Bulgaria.

However, the Mirin case is explicitly about changes in the civil registers. Hence, the AG found a different compromise. He decided that Romania must only account for the applicant’s change of identity in relation to his free movement across the borders. In all other aspects, including marriage and child-parent relations, the applicant will remain registered as a woman.

Fundamental freedoms as ground for LGR: an unsatisfactory solution

A few elements distinguish Mirin from previous LGR cases before the CJEU. Firstly, the case was not presented as simply a discrimination case, but one on a breach of EU fundamental rights at large, both Charter-protected rights and TFEU guaranteed fundamental freedoms. The domestic court framed the question in light of European citizenship, right to free movement and residence, dignity, equality before the law and non-discrimination, as well as privacy and family life (Articles 2 and 18 of the TEU; Article 18 TFEU; Articles 1, 7, 20 and 21 of the EU Charter). Secondly, the applicant was not contesting the Romanian judicial LGR procedure itself, but only the lack of automatic recognition of the applicant’s status from another Member State.

These two elements create an interesting situation, whereby the case is both broader and narrower than previous situations the CJEU had to rule on. On the one hand, the Mirin case does not actually impact domestic LGR procedures. On the other hand, it frames LGR as a question of fundamental freedoms associated with EU citizenship (an area where the CJEU has historically been fairly ambitious) and fundamental rights, on which most of the CJEU’s case-law on LGR has been grounded.

The AG decided to base its reasoning on barriers to fundamental freedoms, departing from previous cases such as Richards and KB where discrimination was the key elements to establish a case-law protective of the right to LGR. He acknowledged that “that solution is indeed not satisfactory having regard to the right to respect for family life and the best interests of the child”, especially in the case of a citizen’s return to his home State.

This solution places the applicant in situations where they are treated as a man for matters regarding cross-border activities, but as a woman for parentage or marriage in their own state. Consequently, a transman, despite the male gender marker on his birth certificate and ID document in Romania, could not marry a woman in Romania (which does not allow same-sex marriage), or be considered the father of a child there. If someone got married while having a female gender marker, and establishes parentage with children in Romania before moving and obtaining gender recognition elsewhere, then they would simultaneously exist as a man on their Bulgarian birth certificate and identity document, and be categorised as a wife and a mother on other documents. As the AG puts it himself, this solution “does not satisfy the requirement of a life without administrative obstacles in the case of the citizen’s return.”

On the one hand, this appears to be a necessary compromise given the current division of competences between the Member States and the EU.

On the other hand, this will create issues concerning the right to privacy and family life. The crux of the issue is the following: the solution does not consider that trans rights such as LGR are (EU) human rights, but instead that even trans EU citizens should benefit from EU-derived fundamental freedoms. Article 7 CFR on private and family life is considered to be at risk only inasmuch as it prevents easy and effective use of Article 21 TFEU. The AG’s position would help trans EU citizens (binationals who have obtained gender recognition in one of the State and wish to recognize it in the other) to obtain LGR in other Member States through the automatic recognition of that status.

Encouraging, for sure, but perhaps a missed opportunity.

This is because the said solution does not render a standalone right to LGR based on EU citizenship or the prohibition of discrimination, which the CJEU previously provided as a proto-right to LGR, as the absence of LGR procedures (at least after surgery) had been found to be discriminatory when EU Law applies, at least twice before.

The CJEU can still chose a different path. Since the subject matter concerns Article 21 TFEU, the EU law applies. Accordingly, the Court should directly apply the Charter and measure the matter against dignity, equal treatment, non-discrimination, privacy, and family life. This could lay the groundwork for a more ambitious EU-based right to LGR, more in line with the Court’s previous impetus on the rights of trans* persons.