The Court of Justice of the European Union held a significant hearing today concerning legal gender recognition for trans people in Hungary

Today, the Court of Justice of the European Union (CJEU) heard the case Deldits (C-247/23), which involves a trans refugee in Hungary who has been denied legal gender recognition (LGR) since 2021. Represented by Háttér Society and the Hungarian Helsinki Committee, the complainant, who was granted refugee status Hungary in 2014, has sought judicial review under Article 16 of the EU’s General Data Protection Regulation (GDPR).

This case raises crucial questions for the CJEU: whether GDPR mandates the rectification of personal data, including gender marker, upon request; what evidence is necessary to support such requests; and whether medical or surgical interventions must be proven.

In addition to the European Commission and advocacy groups, the governments of Hungary, France, Spain and the Netherlands participated in today’s hearing, highlighting its broader implications for LGR in Hungary.

The Budapest-Capital Regional Court’s referral to the CJEU marks a pivotal moment in the ongoing battle for trans rights in Hungary. Despite the 2018 Constitutional Court decision and the 2020 European Court of Human Rights judgement affirming these rights, the Hungarian legislature has yet to implement necessary changes. LGR for both refugees and Hungarian citizens has been banned since 2020.

According to Katrin Hugendubel, Advocacy Director at ILGA-Europe: In its final judgment, the CJEU will have the opportunity to address the discrimination faced by trans EU citizens when a gender marker that does not correspond to their gender identity is recorded in the national registrars. The case is of the utmost importance to protect the rights of trans citizens in Hungary and across the EU, notably in the context of the Hungarian ban on legal gender recognition.

The opinion of the Advocate General is expected on 12 September 2024. The CJEU’s decision is anticipated later in the autumn, and it holds significant potential to influence the legal framework for trans rights within Hungary and the broader EU.

ILGA-Europe, alongside Transgender Europe (TGEU), are providing support to Háttér Society in this case.

Read the press release by Háttér Society here.

An opinion from the Advocate General of the Court of Justice of the European Union states that documents received in the UK by Romanian trans man must be recognised in his home country.

In a significant development regarding the rights of trans people in the European Union, the Advocate General of the Court of Justice of the European Union (CJEU) has issued an opinion calling for the automatic recognition in birth certificates of new name and gender marker acquired in a Member State.

The opinion specifically pertains to the case of Arian Mirzarafie-Ahi, a trans Romanian man facing his home country’s authorities’ refusal to recognise in his birth certificate his new gender marker, acquired further to his legal gender recognition in the United Kingdom.

Advocate General Jean Richard de La Tour said it was imperative that the Romanian state record in his birth certificate entries related to his name and gender without additional procedures. This recognition, argued the Advocate General, is essential in upholding the rights to free movement and private and family life guaranteed by the European Union.

Arian’s case, supported by the ACCEPT Association, ILGA-Europe and TGEU, marks a pivotal moment in addressing the mutual equivalence of legal gender recognition (LGR) procedures across EU Member States.

The refusal of authorities in Romania to recognise Arian’s UK-issued identity documents has left him in a precarious situation, living with two different identities. Despite being a citizen of the European Union, Arian’s ability to exercise his freedom of movement and his right to private and family life is hindered by the lack of recognition of his true identity in his home country. This discrepancy exposes him to discrimination and humiliating treatment, particularly at border crossings.

Expressing anticipation for a favourable judgment from the CJEU, Arian emphasised the significance of having his identity accurately represented in official documents. “The favourable judgment of the CJEU is extremely important for me and many other Romanian and EU citizens,” he said. “It is about respecting a fundamental civil right. I am Romanian, I am in the European Union, I am trans. My documents must represent me and be updated.”

The importance of this case extends beyond Arian’s individual circumstances. It underscores the broader issue faced by thousands of individuals whose rights are compromised due to disparities in identity recognition among EU Member States. The opinion of the Advocate General reinforces the principle that rights legally obtained in one Member State must remain valid throughout the EU.

In response to the Advocate General’s opinion, Katrin Hugendubel, Advocacy Director at ILGA-Europe, added: “The AG opinion confirms what we have been pointing out for EU institutions for quite some time: without mutual recognition of legal gender recognition from one member state to another, the right to freedom of movement is not guaranteed for trans people in the EU. We are looking forward to the judgement confirming this opinion and urge the European Commission yet again to put forward legislation that will guarantee the freedom of movement for all LGBTI people under its next term. The EU directive on parenthood recognition is a very important piece of the puzzle to ensure the freedom to reside and move across the EU for LGBTI people, but more is needed to ensure that trans people can move freely across the EU and enjoy citizenship rights on equal footing with every other citizen of the EU.”

As the CJEU deliberates on this case, there is a collective hope that the judgment will align with the opinion of the Advocate General and ensure the automatic recognition of Arian’s legal gender recognition in the corresponding entries of his birth certificate by the Romanian state. However, we hope that the Court will not take into account in its judgment the questions of “marriage and parentage” emphasised by the Advocate General in his Opinion, which are not at stake in Arian’s case.

Arian Mirzarafie-Ahi, a transgender man with Romanian and British citizenship, has filed a first-of-its-kind lawsuit in Romania against Romanian authorities over their refusal to recognize his new male name and gender identity acquired in the United Kingdom (while still treated as an EU Member State). The lawsuit, which raised fundamental questions under EU law, has now been referred to the Court of Justice of the European Union (CJEU) in Luxembourg.

ACCEPT Romania, a leading Romanian NGO for LGBTQ+ rights, is helping Arian bring this landmark legal claim before the CJEU to have his new gender identity acknowledged in Romania, in accordance with his free movement and citizenship rights.

Arian began the legal process to change his gender identity markers and name in 2016. He was ultimately granted a gender recognition certificate by the UK authorities in 2020, during the Brexit transition period (when the UK was still treated as an EU Member State).

Romania now refuses to acknowledge the name and gender recognition that Arian received in the UK. Instead, it is demanding that Arian undergo Romania’s own gender recognition procedure, which has already been found to violate the European Convention on Human Rights. As a result, Arian now finds himself with two different identities across two countries, which has impacted his well being, his freedom of movement, and his EU citizenship rights.

This situation is humiliating and deeply affects Arian’s right to dignity under the Universal Declaration of Human Rights and the European Convention on Human Rights. Arian’s ability to travel freely in the EU, like any EU citizen, has been unjustifiably restricted, including his ability to visit family members in Romania, because his Romanian passport displays the wrong identity.

Arian’s case is the first of its kind to reach the European Courts. He hopes the CJEU will side with him and rule that the Romanian authorities should acknowledge his UK gender recognition and issue him new identity documents with the correct name and gender, without subjecting him to the full Romanian gender recognition procedure.

This case could set a precedent for other transgender people whose gender recognition in one Member State is not being acknowledged elsewhere in the EU, harming their ability to travel freely, reside, work or study across the EU, or even to vote.

The Court will also have the opportunity to confirm that the rights that EU citizens lawfully acquired in the UK when it was still treated as a Member State, such as Arian’s gender change, are portable when those citizens wish to exercise their free movement rights.

Arian and ACCEPT are represented by human rights lawyer Iustina Ionescu and assisted by leading international law firm White & Case on a pro-bono basis.

The facts of this case are as follows.

Background to the case

Arian was born in Romania and migrated to the UK in 2008, and later gained dual citizenship. He started the medical and legal transition in the UK in 2016 at the age of 24, and obtained a UK gender recognition certificate in June 2020, when the UK was still treated as an EU member state.

Arian attempted to register his name and gender change with the Romanian authorities in 2021, but his request was denied. Instead, the Romanian authorities demanded that Arian undergo the full Romanian gender recognition procedure before the national courts. That procedure has already been found to be in violation of human rights by the European Court of Human Rights (X and Y v Romania).

Arian then filed lawsuits in the Romanian national court against the Directorate for the Persons’ Records in Cluj, Romania; against the Civil Status Service, the Directorate for the Persons’ Records and the Administration of Databases and against Cluj Municipality represented by Emil Boc, over their refusal to change his identity documents through a simple administrative procedure.

Through this legal action, Arian is requesting that the national courts oblige the Romanian authorities to change his gender and first name, as well as to issue a new birth certificate.

Before Brexit, Arian could have travelled based on his British passport that reflects his gender identity. However, since Brexit, he can exercise his EU citizen rights only through his Romanian identity documents, which do not reflect his gender identity.

Alongside this breach of Arian’s fundamental rights, especially his right to free movement and residence in the EU, this disparity between his Romanian and British documents exposes him to humiliation and discrimination.

Arian has to travel to the EU with a Romanian passport that reflects neither his gender identity nor his appearance, or must travel on his UK passport as a non-EU citizen.

Considering that Arian’s case raises new issues of principle requiring the interpretation of EU law, in particular in relation to free movement rights and EU citizenship, the Romanian court has decided to refer the case to the European Court of Justice for a preliminary ruling. After hearing the parties, both in writing and orally, the Court of Justice will render a judgement that will be binding on the Romanian courts and throughout the EU.

Quotes

Arian said: “My entry into Romania’s territory, the country where I was born and where I have family members that I want to visit, depends on a set of identity documents that do not reflect who I am.

Due to the Romanian State’s refusal to recognise my gender identity and issue updated documents, I have already been a victim of discrimination at Romanian airports.

“All that I want is to be respected as a Romanian and European citizen and to have my Romanian identity documents updated, just as my UK documents were when I transitioned. I want to be able to enjoy all my rights, but especially my right to dignity.”

His lawyer, Iustina Ionescu, said: “The Romanian state once again violates European law and disregards the efforts made by a Romanian citizen to obtain the recognition of his gender identity in another EU Member State.

“For over a year and a half, the Romanian civil status authorities have sent Arian on a fool’s errand – they have forced him to once again go through a procedure that is entirely random in Romania, and that has already been declared by the ECtHR as violating human rights, and that does not guarantee him a solution of the situation.

“Before being European citizens, we are Romanian citizens, and the state should do its duty towards all its citizens. Fortunately, we can turn to European justice to ensure that we receive equal treatment without discrimination. The European Court of Justice has ruled many times that EU member states should refrain from taking decisions that restrict free movement and the rights of EU citizenship, as Romania did in this case.”

Florina Presadă, executive director of ACCEPT, commented: „ACCEPT Association has been working for years to put an end to the discrimination and abuse that the Romanian state subjects transgender persons in Romania by not providing a legal gender recognition procedure and all services required so that transgender persons can exercise their right to self-determination.

We have been providing legal counselling, psychological support and guidance in transition for years for transgender Romanian citizens, and we have also supported strategic litigation cases in order to show, beyond any doubt, that the rights of transgender persons in Romania are being violated. Our goal is to put an end to the current laws, policies and practices leading to the discrimination of transgender persons.

We stand by Arian, as we stand by every transgender person in Romania and in any other EU member state that does not recognize these persons’ rights to self-determination and dignity. We hope this ruling will show that European rights are for everyone, regardless of gender identity or expression.”

Patrick Brăila, trans activist, declares: “Among the Romanians who left for other European countries for a better life, there are also transgender Romanians who work and live in these states, where they managed to obtain citizenship and which became their adoptive countries. One of them is Arian, a Romanian and British citizen, whom the Romanian state humiliated and wronged when it did not recognize his identity and put him in abusive and intrusive situations. We trust that the CJEU will give him justice, thus restoring the dignity of both him and other trans people who know that their rights as European citizens can no longer be violated.”

“To paraphrase Ursula von der Leyen, if you are trans in one member State, you are trans in all member States. This needs to be settled once and for all,” comments Lenny Emson, TGEU Executive Director. “Having to go through the ordeal of having your gender identity vetted several times is unfair and puts trans people at a clear disadvantage when compared to others living in the EU. Romania, in particular, has no quick, transparent, and accessible legal gender recognition procedures, as confirmed by the European Court of Human Rights. We are proud of Arian for claiming his right to enjoy his EU right to freedom of movement.”

Katrin Hugendubel, Advocacy Director at ILGA-Europe added: “This case is just one example of what trans people in the EU have to go through when their gender recognition from a Member State is not recognised in another, forcing them to undergo the full legal recognition procedure again. This is particularly difficult and troubling in those countries that lack an LGR procedure in conformity with international human rights law standards. This judgment from the CJEU will establish a clear obligation to recognise gender recognition from one Member State in another. It will rightfully enable trans people to move freely across the EU, and to enjoy EU citizenship rights on equal footing with everyone else.”

For further information and interviews, please contact Diana Dragomir, Head of communication & PR ACCEPT Romania at diana@acceptromania.ro or Florina Presadă, Executive Director of ACCEPT Romania at florina@acceptromania.ro.

The most striking finding of ILGA-Europe’s Annual Review 2023 is a stark rise in the ferocity of anti-LGBTI hate and violence reported in Europe and Central Asia. But alongside this worrying trend, there are positive developments in areas such as legal gender recognition, public support, intersex human rights and civil society. Here are the key highlights.

At ILGA-Europe we’ve just published our Annual Review, showcasing the main developments and trends in the human rights Situation for LGBTI people in Europe and Central Asia. Disturbingly, the most striking finding this year is the levels of hate reported in the region. 12 years into this yearly reporting, the present edition finds that anti-LGBTI violence in 2022 was more targeted and extreme than ever in the history of our reporting.

Our Annual Review aims to paint a clear picture of the reality from the ground for our communities. It documents individual cases and events, as well as legislative, social and political advancements and regressions, and new available data. All reporting is based on the work of LGBTI activists in each country featured in these pages, as well as on our own work.

While the review points to the devastating consequences of the instrumentalisation of LGBTI people, mostly for political gain, there have been other developments in the direction of human rights and protection of LGBTI people.

We have not seen this severity of the violence before

For years, ILGA-Europe has been documenting the rise in hate while activists across the region have shown how anti-LGBTI speech, both online and by political and religious leaders, translates into violence harming people.

This phenomenon is across the board in this year’s Annual Review. For example, in France, the Ministry of Interior reported a 28% rise in hate crimes between 2020 and 2021. In Switzerland, LGBTI organisations reported a 50% increase between 2020 and 2021. Spain reported a 68% increase in 2021, while in England and Wales transphobic incidents rose by 56%.

There are also more reports than ever before of LGBTI people taking their lives, a clear sign how discrimination, hate speech and harassment are impacting mental health. In Italy, three trans women took their lives. Two of them were teenagers, the third woman was a teacher, who was suspended from school because she had socially transitioned. In Armenia, a young gay couple committed suicide after suffering harassment when a photo of them kissing went viral. These are just a few examples.

Sexual education is increasingly compromised

Education is a growing battleground in the resistance to LGBTI people and rights. In Hungary, as result of law banning LGBT content, teachers reported a fear of bringing sexual orientation, gender identity and other topics to the classrooms. In the Netherlands, 36 orthodox schools require anti-LGBTI declarations from pupils and parents, and the new Italian Prime Minister, Giorgia Meloni has publicly advocated for a ban on sex education in schools and the exclusion of LGBT people in children’s books.

Russia expanded its ‘propaganda law’ to prohibit positive and neutral information about LGBT people and “gender reassignment” to minors and adults. There was an alarming number of ‘propaganda’ charges or threats in educational establishments in the country. All in all, progression on sexual education is being challenged.

Public support for LGBTI people is growing

In parallel, the report finds growing support among societies for LGBTI people, also in countries where we might not expect it. For example, most Hungarians don’t consider ‘homosexual propaganda’ an important issue. In Poland, two thirds of the population support marriage equality and 60% support the abolition of anti-LGBT resolutions in the country.

What’s more, many politicians across Europe have shown their support throughout 2022. Many reacted with horror to the killings in Oslo and Bratislava and the European Parliament has publicly condemned the violations of LGBTI rights. We need more governments standing strong against hate in the media and online and more progress in advancing laws against hate crimes that protect LGBTI people.

There are more legal gender recognition laws that include self-determination

In the face of enormous backlash on trans people, and a number of forces trying to stop legal gender recognition (LGR), some countries made progress in 2022 and others showed a will to ensure a model of LGR based on self-determination.

Scotland, Finland and Spain were the best examples; by adopting LGR laws that include self-determination, these countries are showing a clear way forward for other governments.

Same-sex partnership is back on the agenda

After stagnating for a number of years, same-sex partnership recognition is on the rise again. Andorra adopted legislation to ensure heterosexual marriage and the recognition of same-sex civil partnerships guarantee the same set of rights. In Latvia, following a Supreme court decision ruling that same-sex couples should be given civil status, same-sex couples were recognised in court cases. Slovenia and Switzerland adopted marriage equality, including positive changes regarding adoption rights. Other countries took steps forward the adoption of laws that recognise same-sex partnerships.

While intersex human rights are rightfully taking a space in the agenda

There is also a growing awareness of intersex human rights across Europe. While Greece adopted a ban on non-vital medical interventions on children, the European Commission conducted surveys and interviews for the first EU study on the lives of intersex people and their parents (expected to be published this summer). The Council of Europe is preparing a Recommendation on intersex human rights while the Chair of European Commission against Racism and Intolerance and PACE General Rapporteur for the rights of LGBTI people shared supportive statements.

Behind every positive development, there are LGBTI activists doing hard work

LGBTI organisations and activists across our region are key to all the advances on LGBTI people’s rights and the support to their communities during 2022.

Despite difficult circumstances, more and more Prides are being organised, support for the most vulnerable in the community is provided and work with institutions and policy makers continues advancing LGBTI people rights.

More and more organisations report covering for gaps in service provision, and providing services where the community does not feel safe to access mainstreaming services, for example when it comes to shelter.

The most remarkable support was that of the LGBTI community in Ukraine through LGBTI organisations, as well as the support by activists across Europe for Ukrainian LGBTI refugees.

LGBTI activists are the central players in countries where progress has been made, as we’ve seen in Spain and Finland, where huge effort went into successfully keeping self-determined legal gender recognition on the right political track, despite fierce opposition.

The Annual Review of the Human Rights Situation of LGBTI People in Europe and Central Asia is published every February, as part of our Rainbow Europe package. We thank all those across 54 countries who worked with us to make sure our reporting was accurate.

Find out what’s been happening in your country here.

Depathologisation, family rights and access to legal gender recognition for minors are among the key steps that national governments must take to advance the rights of trans people, according to a new Council of Europe report.

LGBTI people’s rights, including the concept legal gender recognition (LGR), are adequately protected in many European countries, but there are significant differences, a recent Council of Europe report reveals. 38 countries out of 46 Council of Europe members have LGR procedures in place, out of which nine are based on self-determination. However, in others there are no clear procedures, while some have even rolled back existing protections, leaving trans people at risk of violence and discrimination while their documents do not match their identities.

While the report acknowledges advances in legislation, practices and public attitudes, progress is slow and key actions are needed to depathologise trans people, to protect their relatives from abusive measures, and to ensure access to LGR procedures for minors.

Here are the key findings:

Depahologisation of gender recognition procedures is urgent

Shocking as it may sound, 13 European countries still require the sterilisation of trans people who want to follow an LGR procedure. This is contrary to the European Court of Human Rights case law, as is demanding medical diagnosis, which 26 countries still do. Finally, there is limited progress in ensuring that being trans is not a mental illness, as well as addressing other issues.

Married trans people should not be forced to divorce

In 19 member states, married trans people must divorce if they want to access LGR. Trans people are forced to choose between their marriages and their identities because of this requirement, which also has an adverse impact also on their spouses and children, as they will lose family-based rights.

This said, there are positive developments: in six countries being single is not a requirement to access LGR and in nine others marriage certificates are updated accordingly.

The best interest of the child should come first

LGR is accessible to children and teenagers in 17 Council of Europe member states. The best interest of the child principle should come first when reviewing limits in age, instead of discussions on the maturity of the applicants. When young trans people cannot access LGR, they are at risk of discrimination.

What about non-binary, gender-diverse and intersex people? What about non-nationals?

The Council of Europe encourages member states to learn from each other and to review the necessity of including gender markers in official identity documentation with regard to non-binary, gender-diverse and intersex people. As for making LGR accessible to non-national residents, the European Court’s case law may provide guidance when re-evaluating existing restrictions.

Other important recommendations

In the report, the Council reminds that equal treatment laws should come along with equal policy measures and regular monitoring. Countries who have no anti-discrimination legislation are encouraged to introduce it, marking gender identity and sex characteristics as grounds for aggravating circumstances.

Read the full report here.

M/F/X/Other: Do you know what non-binary gender markers can be registered today in Europe? To mark International Non-Binary People’s Day, we commend the countries that have introduced the registration of gender markers other than male or female, who using no gender markers at all in their official documentation, and those who are working to adapt their systems to recognise non-binary identities in the near future.

Allowing for non-binary gender markers in official documents is primarily an issue of accuracy, privacy, and respect for a person: non-binary people who must choose between only ‘male’ or ‘female’ gender markers are unable to have their documents match their identities, and as a result are often exposed to privacy violations because of assumptions about their sex assigned at birth.

When your government does not acknowledge or respect who you are, the psychological consequences can be significant. A major survey this year of LGBTI people, conducted by the EU Agency for Fundamental Rights (FRA), indicated that over 50% of trans respondents identified somewhere outside of the binary, while in the EU Trans Study, released in June 2020, one-quarter of the respondents who had not changed their legal gender said that the gender marker they needed were absent. Public opinion is also moving toward supporting non-binary markers: 46% of respondents to the 2019 Eurobarometer supported a third gender marker.

However, right now only three European countries recognise non-binary identities while three others have taken active steps to do so. As this forward trend continues, we hope more and more countries will join the push forward.

Iceland

Since 2019, Icelandic given names are no longer male or female in the national registry, thanks to the Gender Autonomy Act. Moreover, Icelanders registering their gender as “X” can take gender neutral family names meaning “the child of” instead of surnames designating an individual as someone’s son or daughter. However, this option is not available to those registered as male or female.

Germany

The category “divers” was introduced on driving licenses, birth certificates and other official documents in 2019, thanks to the efforts of activists and in particular, Vanja, a German citizen whose demands to be officially registered as “other” were rejected until 2017. However, this third gender category is technically only available only to intersex people who provide a medical certificate at the moment, which means it excludes trans people, non-binary people and intersex people who cannot present a certificate.

Malta

Since 2018, people who do not want to register their gender as male or female in Malta can mark “X” on their IDs. Not many laws in Malta differentiate according to gender. However, as ILGA-Europe found out in this research on non-binary gender registration models in Europe, individuals with an “X” on their IDs may encounter obstacles in the healthcare system, similar to those experienced by intersex people or trans men when, for example, trying to schedule gynaecologist visits. As stated in our research, “this is why it is crucial for anti-discrimination laws to cover gender identity, gender expression and sex characteristics in all spheres of life, including public and private actions.”

The countries taking steps forward:

Belgium

In January 2022, the government introduced a draft bill that will remove gender markers from identity cards. This follows a Constitutional Court ruling from 2019 that partially revoked the gender recognition legislation passed in 2017, stating it was discriminatory for non-binary people, as their gender identity could not be recognised. The ruling stated: “Persons having a non-binary gender identity should have the possibility of adapting the sex shown on their birth certificate to reflect their gender identity.” However, gender markers will only be removed from identity cards and not from the National Registry

The Netherlands

By 2024, Dutch ID cards will be gender-free. The government seeks to end “unnecessary” registration of gender where it is irrelevant. The cities of Amsterdam and Utrecht have already removed gender markers in some documents. In a few cases, the judiciary has ordered a non-binary gender marker to be inscribed. For example, an Amsterdam Court ruled on July 2021 that ‘X’ can be retroactively entered as a gender marker in birth certificates, instead of ‘sex cannot be determined’. However, these cases do not set legal precedents. At the moment, there is no law in place offering the possibility, without obstacles, to have a non-binary gender marker.

Greece

In September 2020, the Magistrate’s Court of Kallithea in Greece recognised non-binary gender identities, stating that the right of the individual to their names is a “statutory element” of their identity.

With our Rainbow Europe module, ILGA-Europe continues, alongside our member organisations to monitor countries across Europe and Central Asia for legislation affecting the lives LGBTI people and their human rights situation. To find out more about Rainbow Europe, click here.

Note: This is an update on our 2020 blog.

In March 2021, Transgender Europe (TGEU) published the report, “Stuck on the swing: experiences of trans parents with freedom of movement in the EU”, in which 18 trans parents from across Europe shared their stories and thoughts. The report found that trans parents and their families face serious barriers when it comes to moving safely and freely across the European Union.

In the fifth part of our mini-series on rainbow family rights, during which we we’re looking at the issues affecting LGBTI partners, parents and their children across Europe, we talk to Senior Policy Officer with TGEU, Richard Köhler, and Slovenian trans-activist, Lea Aymard, one of the parents featured in the report, about the current state of play and ways forward.

The Hungarian Constitutional Court has annulled the provision of the Registry Procedure Act introduced by Section 33, which contained that the new rules prohibiting legal gender recognition shall also be applied to ongoing proceedings. 

Last March, at the height of the first wave of the coronavirus pandemic, a few days after the declaration of the state of emergency, Deputy Prime Minister Zsolt Semjén submitted an omnibus bill to Hungarian Parliament. Its Section 33 proposed the abolition of legal gender recognition in Hungary.

The law forces trans and intersex people to use documents that do not reflect their gender identity and / or appearance. In addition, Section 33 included a provision amending the Registry Procedure Act to apply the new rules to ongoing proceedings as well, which is particularly problematic in view of the fact that many trans people have been waiting for years to have their legal gender recognition requests processed. 

Following the entry into force of Section 33, these previous requests were rejected  by the authorities citing the new legislation. However, with the help of Háttér Society and the Hungarian Helsinki Committee, a number of trans people challenged the rejection decisions via judicial review. In December, the Miskolc Court of Appeal requested the Constitutional Court to declare the provision prescribing the application of the new law to ongoing proceedings unconstitutional. 

In its decision published today, the Constitutional Court sided with the applicant and Miskolc Court of Appeal and annulled the relevant provision of Section 33. According to the Court, “within the scope of the state’s obligation to protect institutions, it may not create a procedural framework that restricts a right guaranteed in the Fundamental Law in an unconstitutional manner”.

The Court specifically highlighted its 2018 decision, which declared that having the possibility to change one’s gender and name is an unrestrictable fundamental right for transgender people. 

With the decision of the Constitutional Court, the unconstitutional situation caused by Section 33 will not be completely eliminated. The decision of the Constitutional Court only applies to the ongoing proceedings, so whoever has not previously applied for legal gender recognition, still has no right to do so.

Háttér Society will pursue litigation in order for the Constitutional Court to declare the entire Section 33 unconstitutional.

Romania has been found to be in violation of the European Convention on Human Rights because its authorities present transgender people with an impossible dilemma. 

LGBTI rights organisations, ILGA-Europe and Transgender Europe (TGEU) have welcomed today’s judgment in the cases of X and Y v Romania, the European Court of Human Rights (ECtHR) found a violation of Article 8 of the European Convention, in that Romania lacked a clear and foreseeable legal framework for the legal gender recognition. The Court’s judgment was informed by a third-party intervention submitted jointly by ILGA-Europe and TGEU.

The applicants in the case, Mr. X and Mr. Y, spent years in the national courts requesting the authorisation for gender reassignment from female to male and an administrative change of forename and personal digital identity code, and other necessary changes in the civil-status register indicating the applicant’s new forename and male gender. The relevant administrative corrections were refused on the grounds that persons making such requests had to provide proof that they had undergone gender reassignment surgery.

While Applicant X was able to obtain male forenames by deed poll in the UK in 2015, he continued suffering constant inconvenience owing to the mismatch between the female identifiers on the papers issued by the Romanian authorities and the male identifiers on the various documents he had obtained in the United Kingdom. While waiting for a decision from the European Court, Applicant Y felt compelled to undergo various surgeries in order to be able to make the necessary alterations to his civil-status records and have a new birth certificate issued.

The ECtHR observed that the lack of procedure and unreasonable requirements by the national courts had presented both applicants with an impossible dilemma: either they were forced to undergo the surgery, contrary to their right to respect for their physical integrity, or they had to forego recognition of their gender identity, which also came within the scope of respect for private life.

ECtHR finding

The Court found a violation of ECHR Article 8 in that Romania lacked a clear and foreseeable legal framework for legal gender recognition. The Court recalled recommendations by the Committee of Ministers and the Parliamentary Assembly of the Council of Europe, as well as the United Nations High Commissioner for Human Rights and the UN Independent Expert on SOGI calling on States to adopt procedures allowing persons to have their name and gender changed on official documents in a quick, transparent and accessible manner.

The Court also found that the State failed to provide fair balance between the general interest and the individual interests of the persons concerned. 

Unfortunately, the Court did not address Article 14 claims on non-discrimination based on gender identity that affects the applicants, and thus did not clearly condemn any surgery requirements in legal gender recognition procedures as discriminatory.

Romania’s ACCEPT association estimates that around 120,000 transgender people live in the country, while less than 50 have managed to change their civil status documents in the last 20 years.

According Patrick Br?ila, co-president of ACCEPT: “Gender identity is an inner feeling and a deeply private one, which must be ascertained by the civil status authority on the basis of the trans person’s statement, without being required to provide medical evidence, the testimonies of others, or worse, to be forced to undergo surgery on the genitals that the person in question either does not want or that are impossible to have in our country, due to the absence of specialists in the field. These interventions cost over €50,000 in foreign countries. We therefore request the Government of Romania, which has the obligation to implement this decision, to develop in collaboration with the ACCEPT Association and the transgender community in Romania, a simplified administrative procedure that allows the modification of identity documents of trans persons, respecting their dignity and personal autonomy and their right to self-determination.”

Welcoming the judgement, Antonella Lerca, member of the TGEU Board said: “Transgender people in Romania are very excited about the news from the European Court of Human Rights. We have been waiting for a long time to hear this, particularly those at the margins. Trans sex workers, poor and homeless trans people, have been rejected by society and been trampled on by the State. We call upon the Romanian state to respect its obligations and immediately introduce a legal gender recognition procedure that is quick, transparent, and accessible and based on self-determination.”

Head of Litigation at ILGA-Europe, Arpi Avetisyan added: “We welcome this judgment as it reiterates the need for establishment of a clear legal framework for the legal gender recognition without any requirements violating the right to privacy and bodily integrity in Council of Europe Member States. Putting trans people in a dilemma of choosing between having their physical integrity respected or having their gender identity recognised is unacceptable. The Court took note of declining number of Member States requiring gender reassignment surgery as a prerequisite for legal gender recognition. It is time that countries across Europe set in place legal gender recognition procedures in line with international human rights standards.”

Further information:

• Find out more about the judgement. 
• Find here our intervention.
• Find out more about ILGA-Europe’s strategic litigation work.
• Find out more about Romania in our Rainbow Map

For media requests, please contact Ana Muñoz: ana@ilga-europe.org, 

Recognition of trans parenthood.

Submitted jointly by ILGA-Europe, TGEU, and Bundesverband Trans*.

Find here the communicated case.

The Court made its decision on 4 April 2023, which found that it is within the State’s discretion to list a trans parent on their child’s birth certificate using a “deadname” and sex assigned at birth.

TGEU, ILGA-Europe, and IGLYO, the three largest networks of LGBTI and trans organisations working in Europe and Central Asia, are calling on the Parliament of Kazakhstan to remove the age limit from their proposed amendment No. 539 to the draft “Code on the health of the people and the healthcare system”.

The proposed amendment will make it impossible for trans people between the ages of 18 and 21 and trans people with “behavioural disorders” of all ages to exercise their right to legal gender recognition and other fundamental human rights set out in international human rights treaties ratified by Kazakhstan.

Member of Majilis, the Parliament of Kazakhstan, Zauresh Amanzholova proposed the Amendment No. 539 to Article 156 “Change of sex” in the draft  “Code on the health of the people and the healthcare system.” The proposed amendment will increase the existing age limit from 18 to 21. This amendment is against the main principle of equal protection of the law and equality before the law guaranteed by Article 14 of the Constitution of Kazakhstan. The proposed change leads to the discrimination of the group of Kazakhstani citizens based on their identity as it singles out trans people in recognition of their legal age by the state.  In addition, the amendment was introduced by the Majilis after the second Parliamentary hearing, leaving no opportunity for public consultation of interested parties as guaranteed by the laws “On public services” and “On access to information”. 

We regret that civil society and expert organisations have not been involved in this process so far. 

Amendment No. 539 will also limit trans young people’s access to trans-specific healthcare. This amendment goes against the right to health protection recognised by Article 18 of the Constitution of Kazakhstan. The real-life impact of not being able to socially and/or medically transition is enormous. Denying access to medical care to trans people between 18 and 21 is overt discrimination on the grounds of gender identity, as well as on the basis of age. In addition, it goes against the right to the enjoyment of the highest attainable standard of physical and mental health, and the principle of non-discrimination, as envisaged in the WHO Constitution and the Universal Declaration of Human Rights. The trans community must be legally protected against the existing discrimination, and not further marginalised by the authorities.

We condemn this action by the Parliament of Kazakhstan and call for a revision of Article 156 that considers civil society and expert organisation’s views!

Following the requests of the local trans community, we call upon the Parliament of Kazakhstan to:

• Withdraw age restriction and “behavioural disorder” restriction;
• Revise the terms used in the draft Code such as the  “sex change” and “persons with sexual identity disorder and replace them with “gender-affirming care” and “persons with gender incongruence” respectively, in line with ICD-11, Kazakhstani legislation, and international standards;
• Increase support to the trans community with legal protections in terms of healthcare and legal gender recognition without discrimination.

TGEU, ILGA-Europe, and IGLYO call on the Parliament of Kazakhstan to review Article 156 as soon as possible. Further, we call on international human rights actors to raise awareness of this issue and support the human rights of trans people in Kazakhstan.

In response to Hungarian Prime Minister Viktor Orbán letter dated 5 May 2020, regarding to Article 33 of the proposed Omnibus Bill, 2020.

Dear Prime Minister Orbán,

Dear Deputy Secretary Schaller-Baross, 

We write today to respond to your letter, dated 5 May 2020, to our organisations, of The European Region of the International Lesbian, Gay, Bisexual, Transgender and Intersex Association (ILGA-Europe), Organization Intersex International Europe (OII Europe), the regional umbrella organisation for intersex-led organisations in Europe, with members in more than 20 countries, and Transgender Europe (TGEU),  in regards to Article 33 of the proposed omnibus bill of 2020, regarding reformulating the national registry to change the mutable category of “sex” to an immutable category of “sex at birth”.

As previously noted, we, along with our members in Hungary, strongly oppose the proposed amendment to the national registry, such that it will effectively make legal gender recognition for trans and intersex people impossible in Hungary, which contravenes EU and international human rights law and violates the well-established right to private and family life for trans and intersex Hungarians. Our previous letter, dated 24 April 2020, outlined the broad consensus among international human rights actors to this end.

We write today to address specific issues raised in your reply letter which are cause for concern. Firstly, we wish to address your reference to “a long-standing uncertainty in the interpretation of the law”. There is a clear understanding in European and international human rights law contexts that the mutable personal characteristic of “sex” is one that, so long as it is publicly recorded by States, should be possible to change to protect the human rights of trans and intersex people to private and family life, to health, to found a family and marry, and to recognition before the law.^1 2 3 4 Legal gender recognition, the process by which one changes one’s sex marker in legal documents to reflect one’s gender identity, is clearly established in long-standing jurisprudence from the European Court of Human Rights,⁵ particularly when it comes to the fundamental right protected under Articles 8 and 12 of the European Convention of Human Rights.⁶ Replacing a mutable identity marker with an immutable one does not clarify an uncertainty in jurisprudence, but rather acts in direct contradiction of the Court to make legal gender recognition impossible, avoiding the State responsibility to protect and promote fundamental rights, in fact directly violating those fundamental rights. With this Article, Hungary will make protection of the fundamental human rights of its trans and intersex citizens impossible in practice and in law. Curtailment of fundamental rights cannot be the best available solution for addressing a legal “uncertainty”.

Additionally, in your reply letter, you assert that Article 33 of the omnibus bill in no way prevents individuals from “living according to his or her own identity and self-determination”. Unfortunately, this assertion is false. As is well-documented,^7 8 access to legal gender recognition for trans and intersex people is intertwined with the protection of many of their human rights. Because the civil register is directly connected to all available identity documents in Hungary, this change not only fixes the sex marker in the registry, but in all other subordinate documents. This means in practice that trans and intersex people will be forced to live with documents that do not align with their gender identity and expression throughout their lifetimes, exposing them to increased discrimination, stigma, harassment, and violence, as well as to disparities in access to the rights to health, housing, education, employment, and to access goods and services without discrimination, as enshrined in the values of the European Union and the Council of Europe.

As ILGA-Europe, OII Europe and TGEU, we reaffirm our call on the Hungarian government to heed your responsibilities under the international human rights law framework, to engage in good faith reforms designed to protect the human rights of all Hungarian citizens including trans and intersex people, and thus to amend the omnibus bill to remove Article 33 prior to a vote in the full Parliament. 

Kind regards,

Katrin Hugendubel 

Advocacy Director, ILGA-Europe

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1. e.g. Recommendation CM/Rec(2010)5 of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity, available from: https://search.coe.int/cm/Pages/result_details.aspx?ObjectID= 09000016805cf40a. 

2. Parliamentary Assembly of the Council of Europe Resolution 2048 (2015), ‘Discrimination against trans people in Europe’.

3. Commissioner for Human Rights of the Council of Europe, Human Rights and Gender Identity (29 July 2009) CommDH/ IssuePaper(2009), available from: https://rm.coe.int/16806da753.

4. G v Australia, Communication No. 2172/2012 (CCPR/C/119/D/2172/2012) (UN HRC, 15 June 2017).

5. B v France [1993] 16 EHRR 1. 

6. Goodwin v United Kingdom [2002] 35 EHRR 18.

7. Grant v United Kingdom [2006] ECHR 548. 

8. Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (11 May 2018) UN Doc No. A/HRC/38/43.

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What have happened?

– On 31 March, Trans Day of Visibility, the Hungarian government released a large bill consisting of many legislative proposals – one of these, Article 33, would make legal gender recognition impossible, massively curtailing the rights of trans and intersex citizens of Hungary.
– On 6 April, ILGA-Europe and TGEU released a statement calling on the Hungarian Parliament and the Parliament to drop Article 33 of a legislative omnibus bill.
– On 27 April, ILGA-Europe, OII-Europe, and TGEU sent a joint letter to Hungarian Prime Minister Viktor Orbán.- On 15 May, ILGA-Europe, OII-Europe, and TGEU sent a joint response to Hungarian Prime Minister Viktor Orbán’s letter.

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– On 2 April, 22 Hungarian human rights and LGBT NGOs released a statement.
– On 2 April, the Council of Europe’s Commissioner for Human Rights shared a statement.
– On 14 April, the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; the Special Rapporteur on the right to privacy and the Special Rapporteur on violence against women, its causes and consequences sent a letter to Hungarian government.
– On 20 April, the European Professional Association for Transgender Health (EPATH) and European Society for Sexual Medicine (ESSM), released a statement.
– On 15 April, 63 Members of the European Parliament sent a letter to Hungarian government.
– On 17 April, the Hungarian Psychological Association released a statement.
– On 17 April, the European Parliament passed a resolution.
– On 17 April, the UN High Commissioner on Human Rights referred explicitly to the bill as bad practice.- Transvanilla Association and All Out has collected over 24,000 signatures for a petition against the Article 33.
– You can SUPPORT the #Drop 33 campaign on Twitter, Instagram, or TikTok.- A vote in Parliament is expected on 19 May.

In our continued call for the Hungarian government to stop the attack on legal gender recognition, we have sent a joint letter with OII-Europe and TGEU. In the letter, we list the international calls to #Drop33 of a legislative omnibus bill–which would deny access to legal gender recognition in the country–including from the COE Commissioner for Human Rights and an admonition from the UN High Commissioner for Human Rights.

Dear Prime Minister Orbán,

This letter, on behalf of The European Region of the International Lesbian, Gay, Bisexual, Transgender and Intersex Association (ILGA-Europe), a regional non-governmental organisation focused on the rights of LGBTI people with over 600 members in 54 countries in Europe and Central Asia, Organization Intersex International Europe (OII Europe), the regional umbrella organisation for intersex-led organisations in Europe, with members in more than 20 countries, and Transgender Europe (TGEU), a member-based oragnisation for the trans community in Europe and Central Asia with 140 member organisations in 44 countries, brings to your attention the response to Article 33 of the proposed omnibus bill of 2020, regarding reformulating the national registry to change the mutable category of “sex” to an immutable category of “sex at birth”.

We, along with our members in Hungary, strongly opposed the proposed amendment to the national registry, such that it will effectively make legal gender recognition for trans and intersex people impossible in Hungary, which contravenes EU and international human rights law and violates the well-established right to private and family life for trans and intersex Hungarians.

We write to bring to your attention the clear and strong call of many international human rights organs and actors in opposition to this measure. You will note that there have been objections published by:

• 22 Hungarian human rights and LGBT NGOs,
• the Hungarian Psychological Association,
• the Council of Europe’s Commissioner for Human Rights,
• 63 Members of the European Parliament,
• the European Parliament as a whole,
• the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; the Special Rapporteur on the right to privacy and the Special Rapporteur on violence against women, its causes and consequences,
• the European Professional Association for Transgender Health (EPATH) and European Society for Sexual Medicine (ESSM), and
• the UN High Commissioner on Human Rights, which refers explicitly to the bill as bad practice. Additionally, a petition against the Article has collected over 22,000 signatures as of the writing of this letter.

As ILGA-Europe, OII Europe and TGEU, we call on you to heed your responsibilities under the international human rights law framework, and to amend the omnibus bill to remove Article 33 prior to a vote in the full Parliament.

Kind regards,

Katrin Hugendubel
Advocacy Director, ILGA-Europe

---

What have happened?

– On 31 March, Trans Day of Visibility, the Hungarian government released a large bill consisting of many legislative proposals – one of these, Article 33, would make legal gender recognition impossible, massively curtailing the rights of trans and intersex citizens of Hungary.
– On 6 April, ILGA-Europe and TGEU released a statement calling on the Hungarian Parliament and the Parliament to drop Article 33 of a legislative omnibus bill.
– On 27 April, ILGA-Europe, OII-Europe, and TGEU sent a joint letter to Hungarian Prime Minister Viktor Orbán.- On 15 May, ILGA-Europe, OII-Europe, and TGEU sent a joint response to Hungarian Prime Minister Viktor Orbán’s letter.

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– On 2 April, 22 Hungarian human rights and LGBT NGOs released a statement.
– On 2 April, the Council of Europe’s Commissioner for Human Rights shared a statement.
– On 14 April, the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; the Special Rapporteur on the right to privacy and the Special Rapporteur on violence against women, its causes and consequences sent a letter to Hungarian government.
– On 20 April, the European Professional Association for Transgender Health (EPATH) and European Society for Sexual Medicine (ESSM), released a statement.
– On 15 April, 63 Members of the European Parliament sent a letter to Hungarian government.
– On 17 April, the Hungarian Psychological Association released a statement.
– On 17 April, the European Parliament passed a resolution.
– On 17 April, the UN High Commissioner on Human Rights referred explicitly to the bill as bad practice.- Transvanilla Association and All Out has collected over 24,000 signatures for a petition against the Article 33.
– You can SUPPORT the #Drop 33 campaign on Twitter, Instagram, or TikTok.- A vote in Parliament is expected on 19 May.

ILGA-Europe and Transgender Europe, the two largest networks of LGBTI and trans organisations in Europe and Central Asia, representing over 800 organisations and groups across the region collectively, are calling on the Hungarian Parliament and the Justice Committee of the Parliament to drop Article 33 of a legislative omnibus bill, which would deny access to legal gender recognition in the country.

The Hungarian government Tuesday, 31 March, released a draft omnibus bill simultaneously amending many laws and provisions. One of the laws proposed for amendment relates to legal gender recognition for trans people – proposing to replace “sex” with “sex assigned at birth” in the national registry and on identity documents, as cited in Article 33 of the omnibus bill.

The cited reasoning for this amendment is: 

“The sex entered into the civil registry is based on facts determined by doctors, declared by the registry. The registry certifies the facts and rights it includes until proven otherwise, therefore it does not create rights. However, the sex declared by the registry could create rights or obligations, and therefore it is necessary to define the term of birth sex. Given that completely changing one’s biological sex is impossible, it is necessary to lay it down in law that it cannot be changed in the civil registry either.”

Functionally, this amendment would mean that legal gender recognition would become impossible under any circumstances in Hungary, because all current mentions of “sex” in identity documents would be changed to the immutable characteristic of “sex assigned at birth”. Currently identity documents can be changed in Hungary by law, although processes have been suspended for nearly two years. 

The amendment comes at a time when the Hungarian Parliament has given Prime Minister Viktor Orbán power to rule by decree indefinitely because of the COVID-19 crisis, which means he no longer needs to consult other lawmakers before making policy decisions. Orbán’s attacks against the LGBTI community go back to 2015, when he blocked a draft agreement at the Council of the European Union which called on the European Commission to tackle homophobic and transphobic discrimination. He has also refused to ratify the Istanbul Convention because of its definition of gender as a social construct, and in 2017 he hosted the International Organisation of the Family (IOF), a US group which campaigns against same-sex marriage. 

The Hungarian people overwhelmingly support access to legal gender recognition for trans people. According to a Median representative survey in September 2019, 70% of respondents believe that trans people should have access to legal gender recognition and only 17% believed that trans people should under no circumstances change their gender or name in their papers.

According to Advocacy Director of ILGA-Europe, Katrin Hugendubel: “Case law from the European Court of human rights clearly establishes the right to legal gender recognition for transgender people. International human rights actors must act firmly and swiftly to stop this extreme rollback in a settled area of human rights law.”

Trans-led Hungarian civil society organisation Transvanilla Transgender Association President Barnabás Hidasi affirms that “legal gender recognition ensures a person’s right to self-determination, and that procedures must be existent, quick, transparent, and accessible”.

“Hungary’s proposed Article 33 runs counter to well-established international human rights standards, including the Council of Europe’s recommendations to member states,” said Masen Davis, Interim Executive Director at Transgender Europe (TGEU). “This dangerous bill would subject trans people in Hungary to increased scrutiny, discrimination, and violence. The Parliament should be focusing on what the people of Hungary to survive the COVID-19 pandemic, not using this crisis as cover to roll back the rights of an already-marginalised group.”

ILGA-Europe and Transgender Europe call on the Hungarian Parliament and the Justice Committee of the Parliament to #Drop33, amending the omnibus bill to protect the fundamental rights of all Hungarians. Further, we call on international human rights actors to raise awareness of this issue, and call on the Hungarian government to mobilise to protect trans people in Hungary and everywhere from derogations of their rights. 

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For further comment, contact Ana Muñoz Padrós, Communication and Media Officer, ILGA-Europe at ana@ilga-europe.org or +32 2 609 56 59.

Legal gender recognition

(Apps. nos. 53568/18 and 54741/18), 25 June 2019

Find here the communicated case.

• The case concerns a transgender man who gave birth and applied to be registered as father to his child. The German authorities refused his request and registered him instead as mother under his former female forename.
• ILGA-Europe together with TGEU submitted the following:
  • Restrictive LGR procedures hinder the ability of trans people to enjoy their family life. The law is often not adapted to their situations, as trans parents are frequently forced to disclose their trans identity because of a mismatch between public records and the children’s birth certificate.
  • In 2018, the Parliamentary Assembly adopted a resolution asking States to provide for transgender parents’ gender identity to be correctly recorded on their children’s birth certificates. The Yogyakarta Principles specify that “States shall issue birth certificates for children upon birth that reflect the self-defined gender identity of the parents.”
  • In Germany, the state de facto dictates a single possible parenting structure, enforces gender norms (a pregnant person is always a mother) and erases the lived reality of other possibilities. Consequently, birth certificates are often contradictory to the reality, forcing trans parents to reveal their trans identity, thus leading to frequent discriminatory and degrading treatments against trans parents and their children in their daily life.
• The Court made its decision on 4 April 2023, which found that it is within the State’s discretion to list a trans parent on their child’s birth certificate using a “deadname” and sex assigned at birth.

Gender reassignment treatment required prior to LGR

(Applications nos. 57864/17 and 79087/17), 14 mars 2019

Find here the communicated case.

Communicated case: 

• The present case concerns the Georgian authorities’ refusal to recognise the applicants’ gender identity unless they agreed to undergo gender reassignment treatment.
• In their joint submission ILGA-Europe and TGEU submitted :
  • Gender identity is a basic attribute of self-determination, which is protected under the right to respect for private life (Article 8 ECHR). As acknowledged by the ECtHR, lack of accurate identification causes suffering. The right to gender self-determination has been affirmed by the Parliamentary Assembly and the Commissioner for Human Rights; and a clear European consensus to regulate LGR is emerging in Council of Europe member States.
  • The diagnosis requirement is based on the pre-conceived idea that trans identities are inherently disordered. Pathologisation subverts an essential aspect of human personality and leads to serious human rights violations. In A.P, Garçon and Nicot v. France, the Court ruled that the requirement to undergo sterilisation or treatment involving a very high probability of sterility as a precondition to LGR was in breach of the right to respect for private life under Article 8 and engaged Article 3. Other recent regional developments suggest that the scope of the discretion available to States in the area of LGR is becoming narrower.
  • Gender identity emerges as a protected ground under international anti-discrimination law. Research consistently indicates that trans people suffer from disproportionately high levels of violence, harassment and discrimination in all fields of life. For this reason they should qualify for heightened protection under Article 14 ECHR. Gender identity is protected under Article 14, although the language used by the Court to date has been inconsistent.

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.

Legal gender recognition 

(Applications no. 2145/16 and 20607/16), 26 June 2018

Find here the communicated case.

• The present cases concern two trans men who claim that their right to privacy and right to found a family have been violated. The legal framework on legal gender recognition in Romania remains uncertain, subjecting trans people to lengthy judicial procedures and pathologizing and invasive medical requirements when in their quest for recognition of their gender identity.
• The comments delivered by TGEU and ILGA-Europe on 26 June 2018 provide the Court with additional information on: 
  • developments on legal gender recognition in the wider international context, namely a steady gaining of ground for the recognition of trans people’s human rights and a move away from pathologisation of trans identities.
  • The interveners discuss the European legal landscape showing that medicalised and pathologizing legal gender recognition procedures where the judiciary plays a substantial role are not in line with European human rights and equality law standards.

Restricted access to LGR

(Applications nos. 36253/13 and 52516/13), 19 March 2018

Find here the communicated case.

• The applicants are Russian transgender men. Due to the absence of a transparent and accessible procedure for changing their names and gender markers, the Russian authorities refused to recognise their gender identity unless they agreed to undergo various medical procedures.
• ILGA-Europe together with TGEU, ILGA and the Human Rights Centre “Memorial” submitted the following:
  • The ECtHR has described gender identity as “a fundamental aspect of the right to respect for private life” and as “one of the most basic essentials of self-determination,” linking it to a “right to sexual self-determination”.
  • The ECtHR held in A.P, Garçon and Nicot v. France that the requirement to undergo sterilisation or treatment involving a very high probability of sterility in as a precondition to LGR was in breach of the right to respect for private life under Article 8. Several United Nations Treaty Bodies and Special Procedures consider that LGR should not be based on gender reassignment surgery.
  • In Russia, trans persons still face considerable difficulties in access to LGR because of the lack of clarity in Russian legislation.
  • Gender identity emerges as a protected ground under international anti-discrimination law. UN Treaty Bodies consistently mention gender identity among the protected characteristics of anti-discrimination clauses in Universal Treaties. Research consistently indicates that trans people suffer from disproportionately high levels of violence, harassment and discrimination in all fields of life. For this reason they should qualify for heightened protection under Article 14 of the Convention. Gender identity is protected under Article 14, although the language used by the Court to date has been inconsistent. This area of jurisprudence would benefit from some clarity.

Intersex (Legal gender recognition)

(Application no. 40296/16), 14 November 2017 

Find Court’s communication here.

Find Court’s decision here. (non-exhaustion of domestic remedies)

• The applicant, an intersex person, was registered as male, but identifying herself as female. She complains of the absence of any procedure in Ukraine for changing gender and name records for intersex persons.
• ILGA-Europe together with OII Europe submitted the following:
  • There is lack of awareness about intersex people in Ukraine and the issues they face in their everyday lives. This results in a lack of non-pathologising information on intersex and lack of administrative procedures to reflect the person’s gender identity which may be wrongfully assigned after birth.  As a result, intersex people are wrongfully precluded from name change and legal recognition procedures that are available to trans people. 
  • According to the ECtHR, imposing a restriction on one’s right to bear or change a name without justified and relevant reasons is incompatible with the purpose of Article 8, which is to protect individuals’ self-determination and personal development. Therefore, restrictions on name change should be analysed very critically and even more so where they are seeking to prevent conformation with an individual’s gender identity.
  • International and European bodies have emphasized the need for quick, transparent and accessible legal gender recognition and name change procedures based on the principle of self-determination.  There is a growing international consensus at the national, European and international level of the need to recognise and protect their rights.

The German Constitutional Court decision is ground-breaking. It’s putting the conversation about recognition of intersex and non-binary people front and centre in a very positive way. 

German policymakers now have two options: introduce a third gender option for people who do not identify as a man or a woman, or remove gender registration altogether.

Either way, the official recognition of people outside the gender binary is coming to Germany! Yesterday, the court imposed a deadline that has to be met by legislators, so we know things will change by the end of 2018.

The court ruling recognises the wonderful diversity in our LGBTI movement. There are people who identify as male or female or non-binary. By opening up the options on birth certificates (or even removing the need to note down gender markers on such documents in the first place) it acknowledges the existence of intersex and non-binary people in our societies.  

Already in 2013, Germany introduced changes to gender registration. For babies that at birth were identified as intersex, with variations in sex characteristics that don’t fit medical norms for female or male bodies, the gender marker was left blank. However well intended, this blank led to increased stigmatisation of intersex people and raised the pressure on parents to agree to sex-conforming surgeries to make their child fit  a male or female gender marker.

ILGA-Europe are very pleased to hear it stated so publicly that more than two gender and sexes exist. We hope that the voices of many, many intersex and non-binary activists will be heard and listened to during the legislative process – as Hanne Gaby Odiele said at our Gala this year, intersex people are part of society and need recognition and respect!

• For more detailed information, read the joint statement from OII Europe, IVIM-OII Germany, TGEU and the German Trans* Association (Bundesvereinigung Trans*). 

Hanne Gaby Odiele at European Equality Gala 2017 from ILGA-Europe on Vimeo.