The EU Court of Justice has judged that it is unlawful for France’s national railway company to force passengers to choose between ‘Mr’ and ‘Ms’ when purchasing train tickets.

Today, the CJEU issued a judgment in the case C-394/23 initiated by the Mousse Association, saying that it is unlawful for a railway company to collect a customer’s gender marker, saying this personal data is not necessary for the purchase of a train ticket and may create a risk of discrimination on grounds of gender identity.

The judgment concerns a case initiated by Mousse representing 64 individuals against France’s national state-owned railway company (SNCF) practice of forcing passengers to choose between the civil titles “Mr” or “Ms” when purchasing train tickets. The train company does not offer a third option and alleged that this data was necessary to personalise its commercial communication based on customers’ presumed gender identity. 

The case relies on the General Data Protection Regulation (GDPR)’s principles of data minimisation and accuracy, as well as the fundamental EU law principle of non-discrimination. 

The French court asked the CJEU to clarify if common practices in civil, commercial, and administrative communications can help determine whether data collection meets the GDPR’s requirements for being adequate, relevant, and necessary under Article 5(1)(c), and lawful under Article 6(1)(b) and (f). If so, collecting only customers’ titles like “Mr” or “Ms” might be considered necessary and compliant with the principle of data minimisation.

The CJEU was also asked whether the right of individuals to object to the use of their personal data by relying on their specific situation under Article 21 GDPR should be a determining factor in assessing the necessity of the mandatory data collection. 

THE CJEU DECISION

The CJEU recalled that the principle of data minimisation requires that collected data be adequate, relevant and limited to what is necessary for the purposes for which those data are processed. The processing of personal data is lawful only if it is necessary for the performance of a contract or for the purposes of a legitimate interest

In this respect, the Court ruled that the personalisation of commercial communications based on presumed gender identity according to a customer civil title is not necessary as it is not objectively indispensable to the performance of a rail transport contract, contrary to what the SNCF and the French State alleged in this case. The Court stated that the railway company could opt for generic and inclusive terms, which are not linked to presumed gender identity, when addressing customers, as this would be a less intrusive solution. 

Additionally, the Court rebutted SNCF’s argument that it pursued a “legitimate interest” as it did not comply with the conditions under GDPR to do so. Notably, collecting gender markers cannot be regarded as necessary when the fundamental freedoms and rights of customers prevail over the legitimate interest of data processors.

Importantly, the Court ruled that processing civil titles of customers can in some cases create a risk of discrimination on grounds of gender identity. This is the first time that the CJEU evokes the fundamental EU law principle of non-discrimination to protect the ground of gender identity for trans and non-binary people.   

IMPACT

The importance of this judgement therefore extends beyond the applicant’s individual circumstances. All public and private organisations that are required to comply with GDPR in the EU will need to comply with this judgment and stop collecting gender markers when it is not strictly necessary in the light of the purposes for which this data is processed.

The judgment also underscores the broader issue faced by trans and non-binary people who are constantly forced to choose in their everyday lives between two options that do not correspond to their identity. Also, binary trans people, whose identity documents do not match their gender identity, will benefit from fewer mandatory forms asking for a gender marker, when it is not necessary to the service or contract at hand. 

According to the EU Fundamental Rights Agency LGBTI survey 2023, almost two-thirds (64 per cent) of trans respondents felt discriminated against in the year before the survey, followed by more than half (51 per cent) of non-binary and gender-diverse respondents, where every second respondent experienced discrimination in the same period,. The survey also found that 15 per cent of non-binary and 35 per cent of trans people said they experienced discrimination when they had to show their ID. In contrast, only one per cent of cisgender endosex respondents reported such issues. Non-binary people make up the largest compound (65 per cent) of the trans community and tend to be younger. 

REACTIONS

According to the claimant’s legal representative, Etienne Deshoulières: “The CJEU’s decision marks a significant shift in the relationship between the State and citizens. Previously, the State “owned” the data in civil-status records and prohibited people from modifying that data, except in exceptional circumstances. Now, each citizen “owns” their personal data and grants the State permission to process it within the limits set by the GDPR, including the principles of minimisation and accuracy. The binary distinction of gender under the law has long been the cornerstone of the system that discriminates against sexual and gender minorities. If this legal binary no longer exists, then a broad array of legal discriminations disappears. It would represent the culmination of decades of advocacy for LGBT+ rights.”

TGEU Expert Advisor, Richard Köhler, comments: “Sixty-five per cent of trans people in Europe identify as non-binary, a young and mobile group forced to navigate systems that don’t match their identity. This case signals progress: less paperwork, fewer binary boxes, and a future where EU law finally recognises and protects non-binary and trans lives. The next generation deserves nothing less.”

ILGA-Europe Senior Strategic Litigation Officer, Marie-Hélène Ludwig added: “Today’s ruling is crucial in putting an end to the discrimination on the grounds of gender identity faced by non-binary persons and all who do not identify within the gender binary, and who are forced to choose in their day-to-day lives between two options that do not correspond to their identity. This judgment will have far-reaching effects, as it clearly states that collecting gender markers when it is not strictly needed is not only unlawful but also potentially discriminatory. The judgement clearly sets an obligation for all businesses, organisations and public services to do away with unnecessary binary data collection, according to EU law.” 

ILGA-Europe and TGEU provided support to Association Mousse and its lawyers, Etienne Deshoulières from Deshoulières Avocats and Johan Heymans, Yasmina El Kaddouri and Delphine Holemans from VS Advocaten, in this case.

Read Association Mousse’s full statement here.

ILGA-Europe and EL*C welcome the Council of Europe Gender Equality Strategy 2024-2029, launched yesterday in Strasbourg.

The Strategy includes a clearly intersectional approach that explicitly includes discriminations based on sex and gender and SOGIESC grounds, especially LBTI women. It also contains a commitment to leave no one behind and to achieve a gender-equal Europe for everyone. Crucially, the Strategy specifically identifies anti-gender and so-called “gender-critical” narratives as being used as tools to promote a broader agenda of opposing gender equality and women’s rights, while justifying “discriminatory practices and policies against individuals who challenge traditional gender roles and norms”.

For this reason, the Strategy adopts an intersectional approach in policies combating against violence against women and in data collection, while specific actions on LBTI women include the promotion of access to justice, actions concerning socio-economic rights and cooperation with relevant sectors and organisations to remove discrimination, sexism and gender stereotypes. The Strategy also specifically addresses the needs of GBTI men for the first time.

ILGA-Europe and EL*C, as the INGO Conference Representative to the Gender Equality Commission and an Observer of the Gender Equality Commission, respectively, worked collaboratively to achieve a strong, LGBTI-inclusive Strategy.  The work done together with Member States and the Council of Europe representatives has led to a Strategy that commits the Council of Europe to address gender equality together with the equality for LGBTI persons and other persons subject to multiple marginalisation. In the current socio-political context and with the rise of far-right and anti-gender narratives, it is key that these commitments are implemented. We will continue working with the Council of Europe and Member States to ensure this implementation in the next years.

The Council of Europe Gender Equality Strategy 2024-2029 can be found here.

We live in a world that is firmly based on a binary construction of gender, leading to structural oppression and discrimination of women in all their diversity, of anyone who is not on the power end of the binary as well as not fitting into these binary norms. 

As such, ILGA-Europe has always been and will always be firmly committed to working to achieve gender equality, women’s rights, and sexual and reproductive rights. Combatting the patriarchal systems of oppression and harmful gender norms and stereotypes, and upholding the principle of self-determination and bodily integrity and autonomy, are at the heart of our common fight.

ILGA-Europe is issuing this statement at a time when we see more and more actors disputing the very notions of gender, gender identity and gender expression, and seeking to position biology and social construct at odds with one another, where biology has more importance. We are witnessing a deeply worrying rise of voices from individuals and organisations which are denying the human rights and dignity of trans people and non-binary people. Not only are those voices fuelling division within communities and between communities, and driving a wedge between movements, they are deeply harming individuals and whole groups. In this context, it is essential for ILGA-Europe to reaffirm our commitment to standing up against any discourse aimed at negating the rights of some people, and to working together across different movements to build an equal future for all who are marginalised and oppressed on the basis of their sex or gender.

Our vision

ILGA-Europe’s vision is of a society where gender no longer carries unequal power relations and privileges between people. We are looking into a future where people can self-identify and be fully recognised for who they are, without the gender binary creating disadvantages, discrimination and violence. Sex and gender are both spectra. We are working for a future where the full beauty of those spectra is valued, supported and included. We also want a world where every person has the right to live freely according to their sex, their gender identity and their gender expression; where every person enjoys their right to self-determination and bodily autonomy.

We reassert our vision because we believe it allows us to find what unites our struggles and to build strong alliances within the movement as well as across movements. We believe in the importance of uniting to dismantle binary structures that harm us all, LGBTI and non-LGBTI people alike.

Our understanding of gender

Gender refers to the social construction of what any given society understands by being a man or being a woman. While gender is a social construct which varies from society to society and can change over time, the current understanding of gender is hierarchical and produces inequalities between those who identify as man and those who identify as woman, between those who fit into the binary norms and those who do not. Hierarchical understandings of gender also underpin unequal power relations that intersect with other inequalities in our societies, such as inequalities based on race, ethnicity, ability, and socio-economic status.

The naming of the difference between sex and gender is rooted in feminism, and at the heart of the women’s movement liberation from biological determinism. We acknowledge that essentialist definitions of sex and gender norms, stereotypes and roles based on a binary definition of sex and gender still profoundly impact women in all their diversity. We also recognise that our communities, our movement, our societies are today still deeply structured along binary lines, which continue to lead to inequality, discrimination and oppression against those identifying as women and non-binary.

We are naming that the existing binary understanding of gender is at the core of present inequality, injustice and oppression, and are challenging the structural inequalities and power imbalances that currently exist everywhere as a result.

Our objectives

To achieve our vision of societies where everyone can be themselves and free from discrimination and violence, ILGA-Europe works towards:

• The right to bodily integrity and autonomy for all, specifically LBTI women, for all trans people, for all intersex people, and all non-binary people
• Equal representation and participation in decision-making in the movement and in the larger society of women in all their diversity, of trans people, of intersex people and of non-binary people
• Ending gender-based and domestic violence in public and private spaces
• Economic empowerment of and economic justice for LBTI women, for all trans people, for all intersex people, and all non-binary people in all spheres of life
• Explicit and effective legal protection against discrimination for trans people, intersex and non-binary people through the inclusion of the grounds of gender identity, gender expression and sex characteristics in legislation
• Explicit and effective legal protection against discrimination for women in all their diversity, including lesbian, bisexual, trans and intersex women
• Legal gender recognition based on self-determination for all
• Right to health being fully realised, including equality in access to health care and treatment and sexual and reproductive health and rights
• Right to education in schools where every child and young person is respected for who they are and can find their place, and where they are protected against all forms of discrimination and violence; where curriculums teach about gender equality, sex and gender diversity in an affirming and inclusive way, and raise awareness about harmful gender stereotypes

ILGA-Europe stands firm on our core value of respect for and recognition of human rights, which are indivisible and universal, and which include cultural, social, economic, civil and political rights. As an organisation, we will continue to resist any attempt to play out the human rights of one group against those of another. We stand against the rise of exclusionary and divisive rhetoric, and name it for what it is, harassment and transphobia. It is not based in truth, it comes with no claims in fact. We will not engage with those that seek to project false information, or hate and division. We will however continue to support all our allies in using their voice to stand for gender equality for all, bodily autonomy and self-determination, and to build alliances with organisations working towards societies where everyone has equal access to equal rights, resources and recognition and all genders are celebrated.

As an organisation, we will continue to resist any attempt to play out the human rights of one group against those of another. We stand against the rise of exclusionary and divisive rhetoric, and name it for what it is, harassment and transphobia.

It is a pivotal moment in Europe, and beyond, when it comes to discussions of gender and gender equality.

With the European Commission’s next Gender Equality Strategy on the near horizon, it is vital to ensure that the Strategy and the resulting policies, programmes, and positions are comprehensive and modern, addressing the gender-based needs of all women and girls in Europe and acknowledging the existence of non-binary and third gender European and global citizens.

On our briefing note, you can find points to remember in these ongoing discussions on inclusive gender equality policies and how to best frame issues impacting LBTI women, as well as non-binary people, where appropriate.

This is a briefing note prepared by ILGA-Europe.

For more information, you can contact Cianán Russell, cianan@ilga-europe.org or Katrin Hugendubel, katrin@ilga-europe.org

The aim of this report is to provide an overview of the different legal gender registration models which somehow cause a break in the static registration of gender as binary, and recognize gender identities as considerably more diverse as is understood under the auspices of the two categories, namely women and men.

It focuses on the legalistic and bureaucratic aspects of implementing these models in order to provide a clear picture how states can avoid unintended consequences when introducing non-binary gender categories, or, conversely, no longer registering gender for various purposes.

The report provides some stance into how non-binary gender registration models affect the human rights, the well-being and social acceptance of non-binary persons. Yet, in order to obtain further conclusive knowledge regarding this topic, more far-reaching qualitative research is necessary.

Since this report serves as a background study for the development of its own policy regarding non-binary gender registration models by ILGA-Europe, it concentrates on possible developments in member states of the Council of Europe (CoE). Nonetheless, it also discusses examples from other regions in order to determine possible best practices and lessons-learned for the European framework.

Recommendations for the integration of a gender perspective into the work of the European Asylum Support Office

The current discriminatory and incoherent provision of protection across the EU and the lack of expertise on gender/sexual orientation/gender identity-related persecutions are putting individuals at risk.

If the EASO is to ensure that the EU fulfils its obligations to protecting all those at risk whether man, woman, gay, lesbian or transgender, a set of recommendations (attached), produced by a coalition formed by ILGA-Europe, the European Women’s Lobby and Amnesty International’s End Female Genital Mutilation European Campaign, must be translated into practice by the new agency.

The European Asylum Support Office will provide asylum expertise, conduct comparative research, collate country of origin information, gather existing practices, and provide training and guidelines for national asylum authorities.

The coalition calls on the EASO to work against discrimination in asylum procedures and to ensure that gender, sexual orientation and gender identity perspectives are embedded equally in the structure and the work of the EASO.

Current asylum procedures in the EU are generally lacking gender, sexual orientation and gender identity awareness: training on questioning techniques is inadequate, and the knowledge and understanding of persecutions on the basis of gender, sexual orientation and gender identity remains low. For instance, a Christian woman was not granted asylum by the Belgian asylum system because they mistakenly believe Christian girls and women not to be at risk of female genital mutilation (FGM).

Background information:

Gender based violence and persecution is a global problem of pandemic proportions:

• more death and disability among women aged 15–44 are caused by acts of violence than by cancer, malaria, traffic accidents and war combined (UN)
• 3 million girls worldwide are subjected to genital mutilation each year (WHO)
• 76 countries still criminalise same-sex sexual activities between consenting adults
• 539 trans people were murdered worldwide from January 2008 to the end of 2010 (Transgender Europe)

The EASO was established by the European Union in response to asylum challenges and is part of the implementation of the 2008 European Pact on Immigration and Asylum which called for the completion of a Common European Asylum System by 2012 “to offer a higher degree of protection”.

Joint contribution by ILGA-Europe, Transgender Europe and OII-Germany towards the European Commission’s assessment of the state of affairs vis-à-vis gender discrimination in education and the provision of financial services

The aim of these Guidelines is to provide an introduction to the content of the Gender Recast Directive and an overview of the jurisprudence of the European Court of Justice, and their relevance for trans people living in the European Union.

These Guidelines are also designed to give guidance on how to improve the implementation of the Gender Recast Directive vis-a-vis gender identity, and to ensure equality for all trans people in the countries where the Directive is applicable.