A Member State of the European Union may not - under any circumstances - make the exercise of the right to rectification of personal data subject to the production of evidence of gender reassignment surgery, ruled the Court of Justice of the EU in a judgment handed down on Thursday 13 March (Case C-247/23).
In Hungary, an Iranian citizen obtained refugee status on the grounds of their transgender identity. Medical certificates issued by specialists in psychiatry and gynaecology show that although this person was born female, their gender identity is male. This Iranian refugee is asking the Hungarian asylum authority to rectify his entry as a woman in the national register, under the ‘GDPR’ regulation on data protection (2016/679).
Hungarian law does not provide for a procedure for the legal recognition of transgender identity.
First, the Court observed that, by virtue of the principle of accuracy set out in the ‘GDPR’ regulation, the data subject has the right to obtain from the controller the rectification, without undue delay, of personal data concerning him or her which are inaccurate.
The Court states that it is for the Hungarian court to verify the accuracy of the data in question in relation to the purpose for which it was collected. In the Court’s view, if the purpose of collecting this data was to identify the person concerned, the data would appear to relate to that person’s lived gender identity and not the one assigned at birth.
In this context, the European Court has ruled that a Member State may not invoke the absence in its national law of a procedure for the legal recognition of transgender identity as an obstacle to the exercise of the right of rectification. It is up to the Member States to comply with a reading of the ‘GDPR’ regulation that takes into account the EU Charter of Fundamental Rights.
Secondly, the Court finds that, for the purposes of exercising his right to rectify inaccurate personal data, the data subject may be required to provide relevant and sufficient evidence to establish the inaccuracy of personal data.
However, in this case, a Member State may not - under any circumstances - make the exercise of the right of rectification conditional upon the production of evidence of gender reassignment surgery. According to the Court, such a requirement infringes the right to personal integrity and respect for private life (sections 3 and 7 of the Charter). In addition, adds the European Court, this obligation is not necessary or proportionate in order to guarantee the reliability and consistency of a public register, since a medical certificate, including a prior psychiatric diagnosis, may constitute relevant and sufficient evidence in this respect.
To see the judgment of the Court of Justice, go to https://aeur.eu/f/fxj (Original version in French by Mathieu Bion)