The rules of a Member State that do not allow the gender-related data of one of its nationals who has exercised their right to free movement in the European Union to be amended are contrary to EU law, ruled the Court of Justice of the EU (CJEU) in a judgment handed down on Thursday 12 March (Case C-43/24).
Registered as male at birth in Bulgaria, a Bulgarian woman exercised her right to free movement in Italy, where she began hormone therapy. Now presenting herself as a woman, she asked the Bulgarian authorities to declare that she was a woman and to change her civil status on her birth certificate.
The Bulgarian authorities rejected this request, relying on national legislation which, interpreted by the Bulgarian Supreme Court of Cassation, understands the term ‘sex’ in its biological sense, excluding any subsequent modification. The public interest, based on the moral and/or religious values of Bulgarian society, thus takes precedence over the interests of transgender people.
The case was referred to the CJEU, which ruled in favour of the plaintiff. In its view, the discrepancy between a person’s lived gender identity and the sex details on their identity card is likely to hinder the exercise of their right to free movement. Such discrepancies may force them to address doubts about their identity or the authenticity of their official documents when carrying out identity checks, travelling across borders or for professional reasons.
According to the European Court of Justice, a restriction on the free movement of persons can only be allowed if it is based on objective considerations of general interest and respects the principle of proportionality in accordance with EU law and the EU Charter of Fundamental Rights, in particular the right to respect for private life.
This right protects gender identity and requires Member States to provide clear, accessible and effective procedures for its legal recognition, the Court emphasised.
Furthermore, the Court found that EU law precludes a court from being bound by the interpretation of its Constitutional Court where that interpretation is preventing the application of EU law as interpreted by the CJEU.
See the judgment of the Court of Justice: https://aeur.eu/f/l5c (Original version in French by Mathieu Bion)