ACCEPT, TGEU and ILGA-Europe welcome today’s decision of the Court of Justice of the EU (CJEU)   said that the refusal of an EU Member State to recognise changes of forename and gender acquired in another Member State is contrary to the rights of EU citizens.

The case C-4/23 Mirin concerns Arian Mirzarafie-Ahi, a Romanian trans man, with dual Romanian-British citizenship. Arian began the legal process to change his legal gender and name in 2017 and was granted a gender recognition certificate by UK authorities in 2020. At that time, the UK was in the Brexit transition period and still treated as a Member State of the EU. Subsequently, Romania refused to register the name and legal gender recognition of  the applicant  obtained in the UK and demanded that he go through Romania’s judicial legal gender recognition procedure. However, the European Court of Human Rights had already found that Romania does not have a procedure for change of name and gender marker that satisfies the standards of the European Convention of Human Rights (ECHR) of being quick, transparent and accessible. 

The Romanian court asked the EU’s top court to clarify whether EU law required Romania to recognise another Member State’s decision acknowledging the name and gender marker of the applicant or if it could enforce its own procedures for legal gender recognition. In other areas of law, EU Member States commonly recognise each other’s decisions without further procedures. As such, this case marks a pivotal moment in addressing the mutual recognition of legal gender recognition decisions across EU Member States. 

The CJEU Decision

The CJEU ruled in favour of Arian, stating that Romania must recognise the legal gender recognition granted in the UK. The Court emphasised that the refusal to acknowledge changes of forename and gender acquired in another Member State is contrary to the fundamental rights of EU citizens, particularly the principles of free movement and non-discrimination. The Court highlighted that mutual recognition of legal decisions among Member States is essential for upholding the rights of individuals within the EU, and that personal identity, including gender, is a fundamental element of one’s identity, protected under Article 7 of the Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights. This landmark ruling reinforces the obligation of Member States to respect and recognise the legal gender identity of individuals as granted by other EU countries.

Impact

The importance of this judgement extends beyond the applicant’s individual circumstance, and underscores the broader issue faced by trans people whose legal gender recognition in one Member State is not acknowledged elsewhere in the EU, preventing them to travel freely, live, work or study across the EU, or even to vote, as any other citizen is able to.  The judgement confirms the principle that rights legally obtained in one Member State must remain valid throughout the EU. 

Reactions

According to Arian’s legal counsel, human rights lawyer Iustina Ionescu: “Today’s verdict has shown us that trans people are equal citizens of the European Union. When you have rebuilt a life in another part of the European Union because you are not welcome in your own country, it is normal to ask to be treated with dignity when interacting with the authorities in your home country.  The fact that today the Court ruled on the mutual recognition of LGR decisions, no matter how different the procedures are in the Member States, should determine Romanian authorities to also adopt a fast, transparent and accessible national procedure, as requested by existing ECHR jurisprudence.”

TGEU Expert Advisor, Richard Köhler, said: “The CJEU’s ruling in the Mirin case is a monumental victory for trans people in Europe! Arian was forced to navigate a legal nightmare, facing the prospect of conflicting passports and demands for sterilisation to match his legal gender on Romanian and UK documents. Member States must recognise each other’s decisions—this is about equality and dignity. Romania, it’s time to act: Arian deserves his passport now, and the country needs a legal framework for recognising foreign gender identities.”

ILGA-Europe’s Senior Strategic Litigation, Marie-Hélène Ludwig added: “Today’s ruling confirms that without mutual recognition of legal gender recognition from one Member State to another, the right to freedom of movement and residence is not guaranteed for trans people in the EU. It is a great victory that shows the power of strategic litigation in the EU. This judgement will have an immensely positive impact, increasing legal protection for all trans people in the EU, all the more as certain EU countries like Romania still do not provide a legal framework for legal gender recognition conforming with European Court of Human Rights’ standards.”

Romanian NGO ACCEPT is a plaintiff in the case alongside Arian. TGEU and ILGA-Europe supported ACCEPT throughout the case, and joined Arian’s legal team at the Oral Hearing before the CJEU in January 2024.

Háttér Society, ILGA-Europe and TGEU welcome an opinion from the Advocate General of the Court of Justice of the European Union stating that Hungarian immigration authorities must correct the gender marker of a trans person in its national immigration registries upon request.

Today, the Advocate General of the Court of Justice of the European Union (CJEU) has issued an opinion on the case of Deldits (C-247/23) calling on Hungary to correct the gender marker of the applicant in the national immigration registry upon request. 

The opinion specifically relates to the case of a trans refugee in Hungary who has been denied legal gender recognition (LGR) in the asylum register since 2021. Represented by Háttér Society and the Hungarian Helsinki Committee, the complainant, who was granted refugee status in Hungary in 2014, has sought the rectification of his gender marker and name (as it reflected his sex at birth) on the national registry under Article 16 of the EU’s General Data Protection Regulation (GDPR).

This case raises crucial questions for the CJEU: whether the GDPR mandates the rectification of the gender marker on national registries upon request, and if so, does this request require evidence? If so, does it need to include proof of surgical intervention?

Advocate General Collins stated that following Article 16 GDPR in conjunction with Article 5(1)(d) GDPR Hungarian authorities need to rectify the gender of the applicant, whose data they recorded inaccurately in the first place. He also pronounced that while evidence might be requested, proof of surgical intervention cannot be required.

This case marks a pivotal moment in the ongoing battle for the rights of trans people in Hungary. The 2018 Constitutional Court decision and the 2020 European Court of Human Rights judgment affirmed the right of trans refugees to legal gender recognition. Nonetheless, the Hungarian legislature has not implemented the necessary changes. Hungarian citizens have not had access to LGR since May 2020, whilst refugees never had access to such recognition. 

Eszter Polgári, Director of the Legal Program at Háttér Society, emphasised the potential implications of a ruling in line with the opinion: “The preliminary ruling reflecting the Advocate General’s opinion might have an impact beyond the specific case, as a positive decision of the Court of Justice of the European Union will hopefully force the legislator to reconsider the procedure on legal gender recognition also for Hungarian citizens, and bring it in line with international human rights and EU law, including the relevant provisions of the GDPR.”

TGEU Expert Advisor, Richard Köhler, adds: “Respect and recognition matter for everyone. For many trans people it is a significant step to living fulfilling lives. The Advocate General’s opinion is a substantial move towards EU Member States finally recognising their responsibility to introduce proper legal gender recognition procedures for all trans people.”

ILGA-Europe Senior Strategic Litigation Officer, Marie-Hélène Ludwig, said: “This opinion is a significant development for the rights of trans people in the EU, including refugees, particularly in countries still deprived of any legal framework for legal gender recognition, in breach of their international obligations. We are looking forward to the judgment confirming Member States’ obligation to record correct gender markers in all national registries.”

The Advocate General at the Court of Justice of the European Union offers independent, expert legal opinions on cases to guide the judges in making their final decisions.

The CJEU’s decision is expected at the beginning of 2025. It holds significant potential to influence the legal protections for trans people within Hungary and across the EU.

ILGA-Europe and TGEU – Trans Europe and Central Asia are providing support to Háttér Society in this case.

ILGA-Europe and TGEU welcome a judgement of the Italian Constitutional Court finding that non-binary peoples’ rights are protected under the Italian Constitution

In a judgment published last week, the Italian Constitutional Court found that non-binary peoples’’ rights are protected under the principles of social identity, equality of citizens and the right to health as guaranteed by the Italian Constitution. The Court did not, however, recognise a right to be registered as non-binary in Italian civil registries. The Court also repealed the legislative provision requiring trans people to obtain a court’s authorisation prior to accessing transition-related surgery.

ILGA-Europe and Transgender Europe (TGEU) welcome this decision but regret that the Court failed to recognise a right to a third legal gender option in Italian registries and identity documents. Our organisations submitted an amicus curiae in the case, expressing that the introduction of a third legal gender option protects the rights to self-determination, dignity and private life of many trans people, intersex people and people of other gender identities. 

The decision follows a referral by a regional court on the case of a non-binary Italian citizen, raising two questions of constitutionality to the Constitutional Court. 

Missed opportunity to recognise a third legal gender option in the Italian system

The first question concerned the current lack of a third legal gender option in Italian registries and identity documents.  

The applicant argued that the failure to recognise non-binary gender identity harms individuals’ social identity (Article 2 of the Constitution) and equality before the law (Article 3 of the Constitution), since legal gender recognition  is allowed only to those whose gender identity falls within the binary. The Court also examined a violation of the fundamental right to health under Article 32 of the Constitution, and whether the lack of recognition of non-binary gender identity compromises psychophysical wellbeing. 

The Constitutional Court declared this question inadmissible, citing the wide repercussions that the introduction of a third legal gender option would have on various sectors of the legal system, which would necessitate a systemic legislative reform of the system and of the many institutions currently operating under the gender-binary logic.  

However, the Court brought this question to the attention of the legislator. It noted that the lack of a third legal gender option in the Italian system can lead to unequal treatment and/or can compromise the psychophysical wellbeing of concerned individuals, which can in turn raise issues around the respect for social dignity and protection of health under Articles 3 and 32 of the Constitution.  

The applicant, as well as ILGA-Europe and TGEU – Trans Europe and Central Asia in their third-party intervention, recalled that non-binary gender identity has now been recognised in numerous legal systems across Europe. Iceland and Germany are leading the way and Denmark and Malta partially acknowledge non-binary identities) [1]. A gender marker option in official registries and documents other than male or female (unspecified or third gender marker option) is an important issue for a growing number of people in trans and intersex communities. The EU Fundamental Rights Agency (FRA) found that nearly every second person in the trans community identifies outside of the gender binary, that is not (entirely) identifying as male or female [2]. 

The Italian Constitutional Court ruling was highly anticipated in this respect, and it could have triggered legislative changes inspiring other countries to follow suit and potentially transforming the landscape of non-binary rights in Europe. 

Unconstitutionality of the obligation for trans and non-binary people to obtain judicial authorisation to access transition-related surgeries 

The second question concerned the obligation in Legislative Decree no. 150 of 2011 for trans and non-binary people to obtain a court decision to be authorised to access transition-related surgical interventions. 

The applicant argued that such an obligation violates the fundamental right to self-determination (Article 2 of the Constitution) and the right to equality before the law (Article 3), since requiring judicial authorisation for a medical procedure that is lawful is unreasonable. Such a requirement is also discriminatory, because other similar interventions not linked to gender identity, are left exclusively to medical judgment and to the patient’s consent.

The Court ruled that such a requirement was unconstitutional. It reiterated that for the purpose of legal gender recognition, it is necessary and sufficient to ascertain the “objective transition of gender identity” which can be accomplished through hormonal treatments and psychological-behavioural support, without a surgical intervention. As such, according to the Court, the blanket requirement for judicial authorisation before surgical interventions is manifestly unreasonable and unnecessary.  

Notably, the Constitutional Court referenced the changing jurisprudential framework in Italy on this issue, highlighting the growing Italian case-law authorising surgery at the same time as ordering legal gender recognition. 

Further to this ruling, trans and non-binary people in Italy will be able to obtain surgeries as part of their trans-specific healthcare without a judicial decision, a requirement that often led to arbitrary and lengthy procedures.  

ILGA-Europe 

TGEU (Trans Europe and Central Asia)

1.  As pointed out by the applicant, the EU itself provides standard forms containing three gender options Non-Binary gender identity is recognised under Regulation (EU) 2016/1191 of the European Parliament and the Council of 6 July 2016 on the free movement of citizens on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012
2.  Russell, Sanders, Watkins, Diving into the FRA LGBTI II Survey Data: Trans and non-binary briefing’, p. 3, available at: https://tgeu.org/intersecting-oppressions-trans-people-in-europe/

The European Court of Human rights has made a judgement in a case where the Latvian authorities declined to prosecute an anti-LGBTI attack as a hate-motivated offence

Earlier this month, in a case taken by the victim of a homophobic assault in Latvia, the European Court found a violation of Article 3 of the European Convention on Human Rights (prohibition of torture and inhuman or degrading treatment) and Article 8 (right to private and family life), together with Article 14 (prohibition of discrimination). 

The case concerned the attack on the applicant and his partner, a gay couple, when they were walking in Riga. The two perpetrators of the attack shouted homophobic slurs and physically assaulted the applicant. The applicant avoided further violence by fleeing into a shop and securing the door. The police and prosecutors declined to prosecute the attack on the applicant as a hate-motivated offence.

The Court found that the authorities had failed to offer adequate protection in respect of the individual applicant’s dignity and private life by ensuring effective prosecution of the attack against him, and to effectively investigate the hate motive behind the attack.

Importantly, the Court considered that “attacks on LGBTI individuals, triggered by expressions of affection constitute an affront to human dignity” so that the attack “not only undermine[d] the victims’ physical safety but also their emotional and psychological well-being, turning a moment of intimacy into one of fear and trauma.”

Furthermore, the Court ruled that such attacks “humiliate and debase the victims, conveying a message of inferiority of their identities and expressions.” As such, the case fell within the scope of Article 3 of the Convention (inhumane and degrading treatment).

The Court also pointed out the crucial importance of addressing impunity in cases of hate crimes as “failure to address such incidents can normalise hostility towards LGBTI individuals, perpetuate a culture of intolerance and discrimination and encourage further acts of a similar nature.”

Welcoming the judgement, ILGA-Europe’s Senior Strategic Litigation Officer, Marie-Hélène Ludwig said: “This judgment sends a strong signal in recalling State’s positive obligations in effectively addressing hate crimes against LGBTI people in Latvia and across Council of Europe member States amidst the rise in hate incidents in a number of countries.”

The judgment can be accessed here.

The European Court of Human Rights has found that Poland violated Article 8 of the European Convention on Human Rights, protecting the right to private and family life, when a trans woman was denied access to hormone therapy in prison

On July 11, the European Court of Human Rights (ECHR) passed judgement in a case concerning the refusal by Polish authorities to allow a trans woman to continue hormone replacement therapy in prison, although she had already undergone such therapy for nearly one and a half years in two previous prisons.

The Court found that the authorities had failed to justify their refusal on any reasonable grounds, and did not provide sufficient explanations as to why the treatment might have been detrimental to the applicant’s health.

To the contrary, the Court pointed out that hormone replacement therapy had beneficial effects for the applicant’s physical and mental health and that the prescribing doctors had considered it necessary and urgent for the applicant to access such care. As such, the Court concluded that the Polish authorities had failed to strike a fair balance between the competing interests at stake, especially in light of the need to protect the applicant’s health as well as her interest in continuing hormone replacement therapy.

Transgender Europe (TGEU) intervened on this case. The judgement can be downloaded here. 

ILGA-Europe, The International Commission of Jurists and the organisation Intersex International Europe jointly file a third-party intervention before the Grand Chamber of the European Court of Human Rights in a case concerning the South African athlete Caster Semenya

In July 2023, in its judgment in the case of Semenya v. Switzerland, the Chamber of the third section of the European Court of Human Rights (ECtHR) had ruled in favour of Caster Semenya, a South African Olympic runner, finding that Switzerland had violated her right to freedom from discrimination, taken together with her rights to respect for private life and to an effective remedy had been violated.

The case had arisen from a complaint brought to the Strasbourg Court against witzerland by Caster Semenya, a South African international-level athlete specializing in middle-distance races (800 to 3000 metres).  She had refused to comply with the “Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development – the DSD Regulations)” of the International Association of Athletics Federations (IAAF, now World Athletics), requiring her to reduce her natural testosterone level through hormone treatment in order to be allowed to participate in international competitions in the women’s category, since the side-effects of such treatment were not well understood.  Her failure to comply with the DSD Regulations resulted in her being barred from participation in international competitions.

Notwithstanding the July 2023 ECtHR judgment, Semenya and many other women athletes continue to be banned from competing in sports under World Athletics regulations. Later that year, the Swiss government filed a referral request to the Grand Chamber of the ECtHR for a final ruling on Semenya’s case.  A hearing in the case will take place in Strasbourg on 15 May 2024.

Kaajal Ramjathan-Keogh, Director of ICJ’s Africa Programme, said, “The Grand Chamber of the ECtHR will have the opportunity to consider Semenya’s complaint of human rights violations and the broader question of discrimination against athletes with hyperandrogenism, a condition characterized by higher than usual levels of testosterone, a hormone that increases muscle mass and strength. Under World Athletics regulations women like Semenya, who have naturally occurring higher testosterone levels associated with Differences of Sex Development (DSD), are barred from competing – unless they subject themselves to medically unnecessary interventions to reduce their testosterone levels and conform to an arbitrary and subjective standard of femininity.”

Organisation Intersex International Europe (OII Europe), ILGA-Europe (the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association) and the International Commission of Jurists (ICJ) filed a joint submission before the Grand Chamber of the European Court of Human Rights to assist the Grand Chamber in its determination of the case. The joint submission focuses on the place of intersex athletes in competitive sports and sporting fairness for all athletes. The submission analyses World Athletics’ constantly evolving rules, which – due to their strict prerequisites – effectively limit and/or prevent the participation of intersex athletes in international sporting competitions.  Even though new regulations were issued in 2021 and again in 2023, the submission deals in chief with the 2018 regulations as these are the ones being contested before the Court.

The submission focuses on the following issues:

•          The DSD Regulations discriminate against intersex athletes on the grounds of sex within the meaning of Article 14 of the European Convention of Human Rights (ECHR), as well as on the grounds of sex characteristics – in particular, genetic characteristics – which, in turn, fall within the protective scope of the same provision. The joint interveners have provided the Grand Chamber with a comparison between the 10 December 2021 Regulations, 31 March 2023 Regulations, and the 2018 Regulations to show that World Athletics is continually restricting access to sport for intersex and other athletes without “particularly weighty and convincing reasons” by way of justification. 

•          The 2018 DSD Regulations were less restrictive than the subsequently issued rules as they only limited participation in the following races: 400m races; 400m hurdles races; 800m races; 1500m races; one-mile races; and all other Track Events over distances between 400m and one mile, whether run alone or as part of a relay event or a Combined Event. The 2018 Regulations were nevertheless discriminatory to intersex athletes.

•          The submission expands on the wider detrimental effect of the DSD Regulations on the human rights of youth, children and intersex athletes.

•          The submission makes brief remarks on the right of access to justice and the right to an effective remedy under international law and standards, including Articles 6 and 13 of the European Convention on Human Rights.

Dan Christian Ghattas, Executive Director of OII Europe, said, “The submission sets out that the 2018 DSD Regulations fall foul on sex characteristics as a ground for discrimination without ‘particularly weighty and convincing reasons’ by way of justification and, as a result, impermissibly discriminate against intersex athletes under Article 14 of the European Convention on Human Rights. In particular, the joint submission underscores the significance of the findings in the Chamber judgment establishing sex characteristics as a prohibited ground under Article 14 of the Convention.” 

According to Katrin Hugendubel, Advocacy Director at ILGA-Europe, “Despite claims from the World Athletics that the DSD Regulations will not prevent any women from competing in athletics, they have the effect of forcing some women with variations of sex characteristics to choose between undergoing medically unnecessary interventions to lower their testosterone levels or be precluded from participating in international sport. This is yet another example of discrimination faced by intersex athletes who are exposed to invasive medical examinations and interventions that have a dramatic impact on their ability to participate in competitions, and which may have life-long physical and psychological consequences.”

Background to the case

The 2019 regulations are the ones that are in question in the case, despite regulations also being issued in 2021 and 2023. Sports governing bodies argued that the 2019 regulations broke from the past 50 years of sex testing women athletes, a practice that was humiliating, degrading and discriminatory. However, the revised 2019 regulations still subjected women athletes to sex eligibility criteria that retain these negative, rights-abusing consequences.

Semenya unsuccessfully challenged the 2018 regulations in the Court of Arbitration for Sport based in Lausanne in April 2019. She then appealed to Switzerland’s highest court, the Federal Tribunal, which dismissed the case on grounds that sports regulations violating women’s rights cannot be struck down as inconsistent with Swiss public policy. They added that the DSD regulations were an appropriate, necessary, and proportionate means of achieving the legitimate aims of fairness in sport.

In its July 2023 judgment, the third section of the ECtHR found that Semenya had not been afforded sufficient institutional and procedural safeguards in Switzerland to allow her to have her complaints examined effectively, especially since her complaints concerned substantiated and credible claims of discrimination as a result of her increased testosterone level caused by differences of sex development (DSD). It followed, particularly with regard to the high personal stakes involved for Semenya – namely, participating in athletics competitions at the international level, and therefore practising her profession – that Switzerland had overstepped the narrow margin of appreciation afforded to it in the present case, which concerned discrimination on the grounds of sex and sexual characteristics requiring “very weighty reasons” by way of justification. The high stakes of the case for Semenya and the narrow margin of appreciation afforded to Switzerland should have led to a thorough institutional and procedural review, but Semenya had not been able to obtain such a review. The Court also found that the domestic remedies available to the applicant could not be considered effective in the circumstances of the case.

The 2018 DSD Regulations require a blood testosterone level below five nmol/L for a continuous period of at least six months. The 2023 DSD Regulations, in turn, impose an even lower threshold with respect to the concentration of testosterone in the serum of relevant athletes, namely, below two point five nmo/L. In comparison with the 2018 DSD Regulations, the 2023 DSD Regulations betray an even more misogynistic nature and are a fortiori discriminatory to athletes with variations of sex characteristics. Moreover, the 2023 DSD Regulations’ restricted testosterone level does not just affect intersex persons, but also endosex (i.e., non-intersex) women in general.

In November 2023, Switzerland successfully requested a referral of the case to the Grand Chamber of the ECtHR on the grounds inter alia that Switzerland lacked jurisdiction; that the case did not involve the application of Swiss law; that the Chamber’s ruling would require a fairly fundamental review of the system of judicial review of international arbitral awards requiring alignment with the judicial review of judgments handed down by national courts and this would run counter to the aims of international arbitration and would significantly reduce the attractiveness of this method of dispute resolution.

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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.

The Court of Justice of the European Union is to decide on lawsuit over the lack of provision of an option for non-binary persons, which may have a far-reaching effect

On Monday, April 29, the Court of Justice will be required to answer the question: Does GDPR and European non-discrimination law require organisations to provide an option for non-binary persons in their forms?

The hearing follows a lawsuit filed by the Mousse Association, representing 64 individuals, against France’s national state-owned railway company’s (SNCF) practice of forcing passengers to choose between the civil titles “Mr” or “Ms” when purchasing train tickets. If the association wins the case, private and public organisations in the 27 European Union States will have to either stop collecting gender markers when it is unnecessary or provide an option for non-binary persons in their forms.

This would be a significant step forward for the rights of non-binary persons, but also LGBTI people who do not identify within the gender binary.

The case relies on the General Data Protection Regulation (GDPR), invoking the principles of data minimisation and accuracy and European non-discrimination law. It aims to set a significant precedent for the inclusion of all gender identities in the European Union, by requiring forms without any reference to gender markers or with inclusive options.

According Senior Strategic Litigation Officer with ILGA-Europe, Marie-Hélène Ludwig:  “The upcoming hearing is a crucial step to put an end to the misgendering and discrimination faced by non-binary persons who are forced to choose in their day-to-day lives between two options that do not correspond to their identity.”

According to Mr Étienne Deshoulières, the lawyer representing the Mousse Association: “This procedure is not only a fight against outdated forms, but a battle for the recognition and respect of each individual in their singularity. It defends the right of every person not to be trapped in the gender binary that does not correspond to their true identity. It is a question of respect for fundamental rights to self-determination, non-discrimination and the protection of personal data.”

ILGA-Europe, alongside Transgender Europe (TGEU), are providing support to the applicants and their lawyers in this case.

In order to focus our strategic litigation efforts across Europe to fully protect and advance LGBTI rights, with this inventory ILGA-Europe wants to support members and partners across the region to identify trends and gaps in protection at the European level, which can commonly be tackled through litigation. The inventory can further strengthen cooperation and help guide our work and efforts by others in bringing forward and supporting strategic cases.

This inventory and continuous assessment of the European landscape informs ILGA-Europe’s ongoing engagement in strategic litigation through identification and support of strategic opportunities.

This inventory covers relevant SOGIESC cases from 2010 up until December 2023.

Two successful European Court cases brought against Russia underline state obligations to protect LGBTI community from violent counter demonstrators and general hate motivated violence.

ILGA-Europe welcome yesterday’s judgments from the European Court of Human Rights in Romanov and Others v Russia and Lapunov v Russia. Romanov and Others v Russia concerned Russia’s failure to prevent and protect LGBTI community members from homophobic violence during peaceful demonstrations and ensure effective investigation. The applicant in Lapunov v Russia was one of the victims of the “anti-gay purges” that took place in Chechnya in 2016-2017, having been detained and tortured in March 2017.

According to ILGA-Europe’s Head of Litigation, Arpi Avetisyan, “These cases are of great significance for the recognition of the rights of LGBTI people that have suffered by inaction or actual infliction of violence by state agents.

“Importantly, the Court observed that even when investigations were initiated, the homophobic nature of the attacks was rejected by the authorities, therefore could not be considered as effective.”

The Court found that physical and phycological treatment suffered by Mr Lapunov in Chechnya amounted to discriminatory torture under the European Convention of Human Rights. Furthermore, the authorities failed to carry out effective and meaningful investigation to uncover violence based on sexual orientation, despite all the evidence provided.

Russian LGBTI organisations, who worked to support both cases before the Court, note that although Russia has left the Council of Europe and is not party to the European Convention since March 2016, it is unlikely to implement these judgments. They are however symbolically important for persecuted people in Russia, as they give hope and a sense of support from the international community. It is crucial that state-sponsored homophobia does not go unnoticed. 

Avetisyan concluded: “These cases are another affirmation by the Court on Council of Europe member state obligations to protect LGBTI community from violent counter demonstrators and general hate motivated violence, and to ensure timely and effective investigations in such cases.”

European court has found that Romania breached the right to respect for the family life of 21 same-sex Romanian couples by failing to recognise their relationships.

In a ruling released today, the European Court of Human Rights (ECHR) found that Romania violated Article 8 (right to respect for private and family right) of the European Convention on Human Rights.

21 same-sex couples lodged over two dozen complaints to the ECHR between 2019 and 2020 arguing that, because Romania does not recognise any type of same-sex union, it was impossible for them to legally safeguard their relationships. The couples, born between 1967 and 1996, were all of Romanian nationality and currently live in various parts of the country.

The couples turned to the European court since local authorities had refused their demands. After living together for different lengths of time, the couples gave notice to the local registry offices of their intention to marry. All requests were rejected because according to the Romanian Civil code “marriage is concluded between a man and a woman” and same-sex marriage is prohibited.

In its ruling, the ECHR reiterated that Council of Europe member states are required to provide a legal framework that protects and recognises same-sex relationships. It also referred to a previous judgment Fedotova and Others  v. Russia and remarked that states have some discretion on the form of recognition.

The court concluded its decision by noting that “none of the arguments put forward by the [Romanian] Government to justify the restriction on legal unions to heterosexual marriage could outweigh the applicants’ interest in having their relationships recognised.”

The 21 couples had declared that they were unable to access numerous rights available for married couples such as protections in property or inheritance, and other obstacles all same-sex couples in Romania face. ILGA-Europe provided third-party submissions jointly with FIDH, NELFA and ECSOL.

This May, Romania, ranked 41^st on ILGA-Europe’s annual Rainbow Map and Index. Close to its fifth anniversary, Romania has not yet implemented the landmark judgment issued by the CJEU recognising the freedom of movement of same-sex spouses in the EU.

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.

With EC infringement procedure against Poland still outstanding, the Court of Justice of the European Union (CJEU) has ruled that sexual orientation cannot be a reason to refuse or conclude a contract with a self-employed worker.

In December 2017, a self-employed worker and his partner published a music video on YouTube aimed at promoting tolerance towards same-sex couples. Shortly after the video went public, the worker’s shifts were unilaterally cancelled by his employer, Poland’s public television channel. Subsequently, no new contract for specific work was concluded with him.

For seven years up to release of the video, the freelancer had prepared audiovisual material for TP, a company that operates a nationwide public television channel in Poland. Considering himself to be a victim of direct discrimination based on his sexual orientation, the worker brought an action for compensation before the District Court of Warsaw. 

The District Court sought guidance from the CJEU, wanting to know whether the EU Directive 2000/78 on equal treatment in employment and occupational activities precludes Poland’s national legislation. That legislation allows an employer not to conclude or renew a contract with a self-employed worker, based on that person’s sexual orientation, on the basis of the freedom of choice.

The EU Directive 2000/78, which covers a wide range of occupational activities, establishes a general framework for combatting discrimination based on sexual orientation. Therefore, the court was tasked with deciding whether the situation the self-employed worker found himself in fell under the directive.

In its judgement delivered today, the CJEU holds that the Directive 2000/78 must be construed broadly, covering the access to any occupational activity, even if the worker is self-employed under contract with an employer.

The Court noted that the directive seeks to eliminate, on grounds relating to social and public interest, all discriminatory obstacles to access to livelihoods and to the capacity to contribute to society through work, irrespective of the legal form in which it is provided.

According to ILGA-Europe’s Head of Litigation, Arpi Avetisyan, “Today’s judgement is another important step forward in strengthening the protection against discrimination in the workplace. The judgement clarifies that EU law protects from discrimination based on sexual orientation also for self-employed and thus reinforces the protection against discrimination equally for the self-employed across the EU. The judgement is especially crucial for LGBTI people in those municipalities in Poland which still have anti-LGBTI resolutions or family charters in place. We hope that Polish authorities will take the necessary steps to implement this judgement swiftly and make it a reality.”

In the summer of 2021, the European Commission (EC) announced infringement procedures against Poland and Hungary for the violation of fundamental rights of LGBTI people and non-cooperation on the matter. While the Hungarian case has been forwarded to the CJEU, the Polish case, despite theoretically being on the same institutional timeline, has not been brought to the CJEU yet, and no up-date is available at this moment of time.

“For years now, we have been observing some EU member states consistently testing EU democracy and the protection of the rule of law and fundamental rights. The infringement procedures sent a clear signal that enough is enough, and the EC needs to see it through.”

Katrin Hugendubel, Advocacy Director, IlGA-Europe

According to ILGA-Europe’s Advocacy Director, Katrin Hugendubel: “In opening infringement procedures, the EC finally clearly stated that the Polish government is violating fundamental rights and that the EC cannot tolerate such violation and the unwillingness of the government to engage in sincere cooperation.

“Even if a few regions have withdrawn the so-called ‘LGBT free zone’ declarations, the discriminatory declarations still prevail on municipal, local and also regional levels. In order not to lose credibility, the EC needs to follow through the infringement procedure and to ensure that all such discriminatory resolutions are repealed.

“For years now, we have been observing some EU member states consistently testing EU democracy and the protection of the rule of law and fundamental rights. The infringement procedures sent a clear signal that enough is enough, and the EC needs to see it through.”

EU-wide parenthood recognition is key in ensuring equal protection for all children in the Union, say ILGA-Europe and NELFA.

Today, the European Commission published a proposal for a Council Regulation on recognition of parenthood, which sets out the full recognition of parenthood for cross-border movement within the EU, while ensuring every child’s fundamental rights are fully protected everywhere in the EU.

According to Europe’s LGBTI umbrella organisation, ILGA-Europe, and the Network of European LGBTIQ* Families (NELFA), this is a major step forward for bringing legal security for children in cross-border situations to have their family life protected and having both their parents recognised across the EU. Currently, many children, including children of LGBTI parents, ‘lose one parent’ when crossing a border because of parenthood not being recognised.

The Council Regulation builds on recent rulings of the Court of Justice of the European Union (CJEU), particularly the one delivered in the case of Baby Sara in Bulgaria (V.М.А. v Stolichna obshtina), requiring EU member states to recognise a parent-child relationship for the purposes of permitting a child to exercise without impediment, with each parent, the right to move and reside freely within the territory of all the member states, as guaranteed in Article 21(1) Treaty on the Functioning of the European Union (TFEU). 

The current lack of recognition of parental ties in cross-border situations means that a parent in one country is not always a parent in another country. Moving from one EU member state to another, for holidays or residence, children might ‘lose’ a parent and in very serious cases, such as the Baby Sara case, have ended up being stateless. This lack of parental recognition can have very serious negative consequences for children in rainbow families, such as depriving them of their succession, or their right to have any one of their parents act as their legal representative in matters such as medical treatments, childcare and education.

In line with international human rights law, the proposal puts the best interests of the child at the core, to ensure that children’s right to identity, nationality, non-discrimination and succession and maintenance rights are protected across the EU. This is a major step forward, which LGBTI rights organisations, including ILGA-Europe and NELFA, have consistently lobbied for until now. In doing so, the regulation addresses broader family issues, and thus does not interfere with the substantive law on family matters which falls within the competence of member states. 

According to Executive Director of ILGA-Europe, Evelyne Paradis: “Ensuring that children have their parents fully recognised when moving across the EU is an essential condition for their best interests and their fundamental rights. This proposed law is doing so, without impeding on the competence of member states to define a family and establish parenthood under their jurisprudence.

“Currently, rainbow and other families often face a burden to establish filiation through court systems and the legal costs that entail. Having legal certainty on recognition will reduce serious concerns and problems that rainbow families face when travelling or moving in the EU.”

President of NELFA, Eleni Maravelia, says: “Rainbow Families in Europe are very pleased with the legislative proposal by the European Commission, because it would strengthen the rights of children in cross-border situations, as guaranteed by the Treaties. In particular, the new law can help to avoid longer periods of statelessness and other serious legal limbo effects for minors – including the loss of essential familial ties, social benefits and parental obligations. Unfortunately, many children still experience such difficulties in the European Union in various shapes and shades. It’s time for a change. Every child needs full recognition and protection, regardless of their living environment.”

ILGA-Europe and NELFA will now work with MEPs and EU governments to ensure that the proposal is supported through the European Parliament and Council, and that the aim of the proposal is maintained in the final legislation.

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ILGA-Europe also welcome today’s publication of a proposal to set binding minimum standards for Equality Bodies by the European Commission. The proposal would strengthen the independence, powers and resources of equality bodies in EU Member States. However, we regret that the European Commission is not proactively seeking ways to include the protection of trans and intersex people in the proposal. Working with Equinet and their membership, ILGA-Europe has seen a lot of interest in widening protection to fully include trans, intersex and non-binary people, and many countries across Europe have started to include gender identity and sex characteristics in their list of protected grounds.

Says Evelyne Paradis: “While we recognise the limitations of the EU treaty, the EC should, in line with EU case law and international human rights standards, encourage member states to not exclude large parts of the LGBTI community from their anti-discrimination protection.”

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For further comment, contact: Ana Muñoz Padrós, ILGA-Europe: ana@ilga-europe.org

Today, the Advocate General of the CJEU has issued an opinion in the case of J.K. vs the Polish public broadcaster company TP, stating that discrimination based on sexual orientation in employment is not acceptable under EU law.

ILGA-Europe welcomes the Advocate General of the Court of Justice of the European Union’s (CJEU) opinion, published today in the case C-356/21, concerning the refusal to continue a contract of work with a self-employed person on the basis of that person’s sexual orientation violates EU law.

The applicant, J.K., is seeking compensation from the Polish public broadcaster TP for the breach of the principle of equal treatment on the grounds of sexual orientation in the form of direct discrimination in the context of the employment relationship between the two parties. J.K is openly a member of LGBTI community, and together with his partner, he engages in the activism for LGBTIQ+ rights, including running a popular YouTube Channel.

The Defendant is the Polish public broadcaster TP, a nationwide public TV network fully owned by the State Treasury. During 2010 – 2017, the employment relationship between the Applicant and the Defendant was based on regularly concluded, consecutive short-term contracts for specific work.

In December 2017, the Applicant and his partner released a Christmas video on their YouTube Channel, where they appeared among other members of the LGBTIQ+ community. Two days after the video was posted, the Applicant received an e-mail from his immediate supervisor cancelling his scheduled shifts. He was also informed that the Defendant was not planning to cooperate with the Applicant any longer. He was replaced by another employee, who had neither the qualifications nor the experience to perform the tasks previously performed by the Applicant.

In her opinion the Advocate General firstly confirmed that self-employment is covered under the Directive and by covering the area of ‘employment and occupation’, the “Directive aims at enabling citizens to realise their potential and earn their living by providing their work”. Furthermore, in addressing the issue concerning “conditions for access to self-employment”, the AG suggests that the Directive covers both initial stage of concluding a contract, but also the provision relating to the termination of contractual relationship.  At all stages, discrimination based on sexual orientation is not acceptable.

According to Arpi Avetisyan, Head of Litigation with ILGA-Europe: “Advocate General Capeta’s opinion is a welcome confirmation that discrimination based on sexual orientation has no place under the EU Directive, including for self-employed workers. We hope the Court will follow the Advocate General’s opinion and build on it so that EU law in this area protects self-employed workers ensuring equal access to employment.  Freedom to choose a contracting party does not imply freedom to discriminate.”  

Read here the Advocate General opinion

The Court of Justice of the EU has stated that birth certificates issued in an EU country must be recognised across the EU, and that EU countries should protect the freedom of movement of rainbow families.

On June 24, the Court of Justice of the European Union (CJEU) issued a reasoned order establishing that when an EU country has recognised two persons of the same sex as parents of a child, then the EU country of which that child is a national, should issue identity documents to that child with both parent on them, and all EU countries should protect the right to freedom of movement of the child and their family. This is a confirmation of a previous landmark judgment, that of Baby Sara.

Poland has been told that it must now provide the child known as Baby Sofia, born in 2018 to Irish and Polish mothers, with identity documents and guarantee her and her parents the right to move and reside freely in the country.

The case arose when Poland denied citizenship to baby Sofia, daughter of two mothers, Kashka, from Poland, and Sinéad, from Ireland. In 2018, Sofia was born in Spain, where the couple had gone to receive IVF treatment. Spanish authorities issued a birth certificate with the name of the two mothers but not identity documents, as children of foreigners are not automatically entitled to citizenship in the country.

At that time, in Ireland, two women could not be recognised as parents on a birth certificate. In the eyes of Irish law, the mother was the woman who gave birth to the child. As Kasha, the biological mother was not Irish, Sofia couldn’t apply for citizenship in Ireland either.

In Poland, where rainbow families are still not recognised, authorities refused to recognise Sofia’s birth certificate, depriving her of access to citizenship and identity documents. For over two years Sofia remained without any documentary proof of any nationality, and therefore at risk of statelessness. The family was could not leave Spain, as Baby Sofia couldn’t travel without documents. Her mothers had to move house every couple of months, as they were running out of savings.

Now, the CJEU has stated that an EU country is obliged to provide identity documents to a child when the child, being a national of the country, has a birth certificate issued in another member state that designates two persons of the same-sex as their parents. All EU countries must respect the documents that allow the child and their family to exercise their right to move and reside freely with the territory of the EU. These are protections granted in Articles 20 and 21 of the Treaty on the Functioning of the European Union (TFEU) and Articles 7 and 24 of the Charter of Fundamental Rights of the EU, among others.

With this reasoned order, the CJEU has confirmed the landmark judgment delivered in the Baby Sara case last year, which arose when a same-sex couple were refused a birth certificate in Bulgaria for their daughter, also born in Spain. Poland must now provide Baby Sofia with identity documents and guarantee her and her mothers the right to move and reside freely in the country.

In the meantime, Spain issued identity documents to Sofia in March 2019. Spanish law foresees a safeguard measure that allows children born in its territory who would otherwise be stateless to acquire Spanish nationality at birth. The couple also applied for Irish citizenship for Sofia through naturalisation over two years ago, but they have not received any feedback since March 2020. The Children and Families Relationship Act, which allowed both women in a same-sex couple to be automatically recognised on their child’s birth certificate, was enforced in Ireland in May 2020.

Welcoming the order, but concerned about its implementation, the lawyer for Baby Sofia’s parents, Anna Mazurczak said: “We are, of course, happy that the Court has applied the reasoning from the Bulgarian case in a Polish case. However, the Court has not been as straightforward as we had hoped. We wanted to make sure that Poland had the obligation not only to issue an ID but also to indicate the first names of same-sex parents on it.

“Through the CJEU’s reasoned order, we hoped to convince the Supreme Administrative Court of Poland that issuing an ID with one mother’s name is not enough. The CJEU has already held that different last names contained in documents issued by different member states can cause an obstacle to the right of freedom of movement. In my opinion, the different parent names on the ID card can violate freedom of movement even more.”

Recently, a draft amendment to the Family Code was submitted for public consultation in Poland, where marriage equality, same-sex registered partnerships and co-parent recognition are not recognised. While it could improve the situation of children of same-sex parents born abroad by recognising their birth certificates, it also presents a discriminatory approach towards rainbow families. There is no clear timeline for the development and implementation of these amendments.

According Arpi Avetisyan, Head of Litigation at ILGA-Europe: “The CJEU’s reasoned order is a welcome confirmation of the rights of children in rainbow families. The Polish and Bulgarian cases that have reached the CJEU, Baby Sofia and Baby Sara, are not isolated. They show the tip of the iceberg of the numerous examples of the hardships experienced by rainbow families in the EU.

“We hope that the upcoming European Commission’s legislation on parenthood recognition, by incorporating the CJEU rulings, will provide a framework for removing obstacles to freedom of movement for rainbow families. What is crucial at the present, however, is that Poland and Bulgaria put in place necessary procedures for implementing CJEU’s judgment and reasoned order as soon as possible.”

Meanwhile, in Bulgaria, the ruling in Baby Sara’s case has not yet been implemented. While on 16 May, Sofia’s Administrative Court, which had asked the CJEU for clarification in this case, ruled that Capital Municipality, Pancharevo District must issue a birth certificate with both of Sara’s mothers on it, the decision was appealed by the Municipality on 13 June. This means that to date, Sara is still without documents and at risk of statelessness.

Recognition of same-sex marriages in the context of freedom of movement in the EU through the prism of implementation of CJEU’s Coman judgment

Submitted jointly by ILGA-Europe and AIRE Centre

Find here the communicated case.

When an EU country recognises a child and its same-sex parents as a family, all EU countries should recognise them as such, so to guarantee their freedom of movement. This is what the EU’s top court ruled in December. But how this case has advanced LGBTI rights in the European Union and what comes next for rainbow families?

At the end of 2021, the Court of Justice of the European Union (CJEU) ruled that if one EU country recognises the child’s parental relationship, then all EU countries should do the same to guarantee the child its freedom of movement across the region, a right of all EU citizens.

The ‘Baby Sara’ case, as it has become known, will have a long-term impact on rainbow families in the EU. Born in Spain to a lesbian couple, baby Sara was denied citizenship there because neither of her Bulgarian and Gibraltarian mothers are of Spanish descendent. Under the British Nationality Act, Gibraltar-born parents cannot transfer UK citizenship.

So, Bulgaria was the one reasonable option left for the family. But same-sex unions are not recognised in Bulgaria and two persons of the same sex cannot be registered as the parents of a child. The Bulgarian authorities thereby refused to issue a birth certificate on which the parents are two women, choosing to not recognise a valid EU birth certificate from another member state. This left baby Sara at risk of statelessness. She had no identity documents and could not leave Spain.

After December’s CJEU judgment, the Bulgarian authorities are obliged to issue an identity card or a passport to baby Sara, a ruling that all other EU countries should recognise.

So, what are the real implications for rainbow families?

Following the CJEU ruling, Baby Sara and her mothers must be recognised as a family for the purposes of EU law, and must be able to enjoy freedom of movement in all EU countries. Freedom of movement, the right of persons to move and reside freely within the territory of EU member states, is a right of all EU citizens.

This is the first case where the CJEU has ruled on cross-border recognition of parental ties in rainbow families. It stated that it is against the fundamental rights of the child to be deprived of the familial ties established in an EU country when traveling in the EU. The family ties were not recognised in baby Sara’s birth cert application because the parents are two persons of the same sex.

The court also clarifies that national identity cannot be used as an argument to deny freedom of movement to rainbow families. This means that it does not undermine Bulgaria’s national identity to recognise parenthood established in Spain, another EU country, an argument often brought by those countries that do not recognise same-sex families.

In other words, the Court has not obliged Bulgaria to allow and recognise same-sex couples in its territory as the parents of a child. Rather, it simply requires Bulgaria to recognise the familial ties among the members of rainbow families — as these have been established in another EU country — when the family moves to its territory.

Finally, the ruling gave legal endorsement to European Commission’s President Ursula von der Leyen 2020 State of Union address, when she affirmed that “If you are parent in one country, you are parent in every country”.

Will the Baby Sara judgement immediately free up movement for rainbow families in the EU?

Implementation is the crucial part of any European court ruling, and often this is fraught with difficulties and time consuming.

The work of the CJEU has finished for now. The Bulgarian authorities must find a solution and decide on the type of identity documents for Sara. This might take time, and considering the situation of LGBTI rights in the country (Bulgaria is in 37th position out of 49 in our 2021 Rainbow Map of legal rights for LGBTI people in Europe), it may mean additional hurdles for baby Sara’s family and further litigation. For example, the Coman case, also related to same-sex unions and freedom of movement, has not been implemented by Romania after three years since the judgment.

However, if Bulgaria or other countries that do not recognise rainbow families refuse to implement the CJEU judgment, the European Commission can start infringement procedures, as these countries would breach EU law. If carried to their last step, this can mean financial penalties against Bulgaria.

So, it’s not as easy as a judgement being made and every country in the EU suddenly opening its borders to rainbow families. But, the world watched the judgement in the Baby Sara case closely, and it was a major step forward in the recognition of the children of same-sex parents across the European Union. We will be watching the implementation of this case very closely too, and will report on how it is progressing.

At the same time, the European Commission is in the process of working on new legislation on the EU-wide recognition of parenthood as well as on guidelines on ensuring freedom of movement for all. We will work hard to ensure that the judgment will be fully reflected and respected there, with the hope that one day soon, all rainbow families will be able to enjoy the rights that every other family in the EU take for granted.

Freedom of expression, warning labels restricting artistic expression.

Submitted jointly by ILGA-Europe, Professor David Kaye, International Justice Clinic, University of California, Irvine, School of Law and ARTICLE 19: Global Campaign for Free Expression.

Find here the communicated case.

As 2021 comes to an end, we have collected some of the moments, events and trends that have marked the year in the latest episode of The Frontline, ILGA-Europe’s podcast about LGBTI activism and lives in Europe and Central Asia. Read here some of the episode’s highlights and find out reasons to stay hopeful in 2022.

2021 has been a year of further lockdowns, of new strains of the COVID virus, and the uncertainty they have brought, and most of all, enormous reverberations of the unprecedented events of 2020 on people’s lives. For the LGBTI movement and communities in Europe, 2021 has also been the year of the growth of a perceived east-west divide in Europe over LGBTI rights, infringement procedures taken by the European Commission against Hungary and Poland because of their anti-LGBTI laws and programs, a sharp rise in the demonisation and isolation of trans people from the women’s movement, and an overall rise in authoritarian regimes seeking to instrumentalise LGBTI lives to limit the rights of others. So, it’s perhaps strange that our guest in this episode, ILGA-Europe’s Executive Director Evelyne Paradis finds great hope for the LGBTI movement amid the storm.

How has COVID-19 continued to affect our communities?

For LGBTI communities, visibility is of top importance. In 2021 we’ve continued to reinvent ourselves while facing new challenges such as building alliances in the digital space with people you don’t know.

The most marginalized ones in our communities have found themselves particularly isolated. On the flip side, many LGBTI activists and organisations across the region have been very resourceful and creative to meet the needs, which comes with a cost because it’s a lot of work.

“I hope there’s going to be of lightness in 2022 for activists,” says Evelyne Paradis.

Is there a divide between the east and the west of Europe?

This year we’ve seen in media and elsewhere a growth of a perceived east-west divide, also when it comes to LGBTI issues. “It is not a real divide, but it is a divide,” she says. “There is a politically driven effort to create multiple divides”.

History shows that creating an ‘other,’ creating an enemy, can help other purposes. In 2022 the work will continue to be to stay attentive in order to not fuel that perceived divide.

Infringement procedures against Poland and Hungary

“We’re in a moment of hope with the EU,” says Evelyne Paradis. “The EU is taking a lot more concrete and bold actions based on their values.” In July, the European Commission announced infringement procedures against Hungary, concerning the censorship of a children’s book portraying LGBTI characters and the prohibition of the inclusion of LGBTI people in material in schools or in media for under-18s, and Poland, concerning a refusal to clarify whether LGBTI people are discriminated against in the labour market in the country’s so-called LGBT Free Zones

A year ago, to think about infringements seemed ambitious. Starting infringement procedures was important for LGBTI communities in these countries too, and the people supporting them — in that sense there’s no divide. Although we have to be careful not to create an “us vs. them” divide, Evelyne Paradis explains, we’re also in a moment when we have to assert and act in accordance to the values that hold us together.

However, Poland and Hungary are not anomalies. They are only the tip of the iceberg as scapegoating LGBTI minorities is spreading to other places. We are at a moment when human rights cannot be taken for granted.

“Times are hard for LGBTI people in the region, not just in Poland and Hungary,” she says. ILGA-Europe has reported a lot of LGBTIphobic violence this year. Now it’s the time for politicians to do the right thing.

Where do we find hope?

“I find hope in the reaction that the publication of our Rainbow Map prompted,” says Evelyne Paradis.

The message “it’s time to reboot” was heard by governments. Politically it feels that the situation is so bad that there’s no option but to act. Many politicians and representatives have contacted ILGA-Europe along 2021, and “it’s our job to tap into that opportunity.”

ILGA-Europe statement on gender

On March 8 ILGA-Europe published a statement on gender, to reaffirm our commitment to standing up against any discourse aimed at negating the rights of some people.

The decision came from observing how harsh the situation for trans people and communities was becoming, but also “from the deep sadness at observing how the beauty of human rights language, the beauty of feminism was been used and abused to divide groups and communities,” says Evelyne Paradis.

It was also a way of saying to trans individuals that we’re here, that a vision of gender that brings us all together is at the core of ILGA-Europe’s work.

Fighting for democratic rights

For a while now, the fight has moved again to be one of fight for democratic rights and freedoms, because in some parts of the region the authoritarian tendencies are very strong again. The freedom to be in the public space with no fear of arbitrary arrests cannot be taken for granted by LGBTI people and communities, as we’ve seen in the METU Pride trials in Turkey.

The clampdown of core democratic spaces is very real and that shapes the work ILGA-Europe does, which is making sure that groups can come together in the face of repeated attacks.

Activists groups need to reconvene, “they need the comfort of coming together.” In this sense, the COVID-19 pandemic is not helping. Spaces like ILGA-Europe’s Annual Conference, that this year was moved for the second time to the digital sphere as an alternative to an in-person meeting, are spaces of restoration.

Strategic litigation as a way forward for LGBTI rights

It’s been a reason for hope to see national and European courts moving in the right direction for some years now, Evelyne explains. Some successful examples in 2021 have been METU Pride trial and Baby Sara case.

However, not because there’s a judgement it means there’s going to be a change anytime soon. There are two caveats to consider. First, it is quite telling of the current context that LGBTI people have to go to court. Second, court judgments, as positive as they can be, rely on governments to implement them. Three years after the landmark judgment issued by the CJEU against Romania, recognising that the term spouse includes same-sex spouses under EU freedom of movement laws, Romania has not implemented the Coman case yet.

“We’ve had to do a lot more work,” she says. “It’s good to see that we can use the courts more but it also doesn’t end there.”

ILGA-Europe’s Gathering Online

It was great to see that people coming together at the Gathering Online despite the screen fatigue. As in 2020, we hosted an online version of Europe and Central Asia’s LGBTI largest conference in October. The main topics discussed along the week were racism, poverty and other forms of structural inequalities that affect the movement, the political context in which we operate, and the creative responses to it.

The main message, says Evelyne Paradis, was to go back to the essence, to the belief in the importance of creating a world that is fair and just, which is the reason why all of us keep standing up for human rights and the LGBTI movement.

It is also a week when solidarity was embodied. “This is where probably I get the most hope, that we are collectively getting into that space of really seeing each other as human beings.”

Some hopes for 2022

“My hope is that as a movement we grow in sincere solidarity, that institutions and governments in Europe continue to find the courage to do the right thing and act.”

Evelyne Paradis also hopes that more and more allies and coalitions become stronger and stronger, “that we turn the tides around.”

“It’s our priority to make sure that LGBTI organisations can do their work,” she concluded.

Presented by ILGA-Europe, The Frontline is a podcast about LGBTI activism and lives in Europe and Central Asia. Deep-diving and analysing from a unique and informed perspective, The Frontline aims to bring you to the core of queer activism and give you an understanding on the complexities of what’s happening, why it’s happening, the wins and the losses, the challenges and commonalities, and the extraordinary ways in which the work of those on the frontlines continues in a rapidly changing world.

Child, being a minor and a Union citizen, whose birth certificate was drawn up by the host Member State and designates as parents two persons of the same sex: the Member State of which the child is a national is obliged to issue an identity card or a passport to that child without requiring a birth certificate to be drawn up beforehand by its national authorities.