European Court of Justice defends right to change legal sex

At a time when these rights are increasingly violated in other countries, it is excellent to see them defended in the European Union. With 450 million people in its jurisdiction, the ECJ has delivered a massive boon to the rights of millions of trans people.

By Artemis T. Douglas and Jane Migliara Brigham

Today’s ruling by the European Court of Justice (ECJ), the highest court in the European Union, defended the right of trans people to change their legal sex, and to obtain a full set of accurate documents which reflect this fact.

The ruling came after a Bulgarian trans woman petitioned to have her legal name changed. This went against Bulgarian law, which since 2023 has barred the changing of legal sex.

The court ruled that the inability to change one’s legal documents along with one’s body leads to discrimination against the trans person in question whenever they must present identification documents. That is a violation of the fundamental freedoms of the European Union, namely Freedom of Movement.

At a time when these rights are increasingly violated in other countries, it is excellent to see them defended in the European Union. With 450 million people in its jurisdiction, the ECJ has delivered a massive boon to the rights of millions of trans people.

According to the Council of the EU, “the EU single market is one of the greatest achievements of the European Union. It guarantees that goods, services, people and capital can move freely throughout the territory of the EU”.

The court also recognized that the gender/sex markers on a person’s documents have psychosocial effects upon them, especially when they are misaligned with how they are living in the present.

The opinion of the court was that not being able to have your ID and passport reflective of your identity, in the case of a transgender or transsexual person, serves to undermine the equal rights of trans people as European Union citizens. 

It also found that standing EU law prevents member-states’ from blocking legal recognition for a person’s transition, and that preventing trans people from changing their legal sex and corresponding documents undermined that right.

From the Court’s opinion,

“Moreover, national legislation which prevents a transgender person, in the absence of recognition of their gender identity, from fulfilling a requirement which must be met in order to be entitled to a right protected by EU law must be regarded as being, in principle, incompatible with EU law.“

“The Court may then conclude that, in such a situation, a Member State cannot rely on the absence, in its national law, of a procedure for the legal recognition of transgender identity in order to limit the right to obtain an identity document facilitating the exercise of the right to move and reside freely within the territory of the Member States of the Union citizen concerned.”

In other words, forcing a trans person who is a citizen of the EU to obtain legal transition documents in their country of origin in order for their passport and national IDs to be reflective of their changed sex/gender is illegal under EU law, per the Court’s ruling. 

This means that gender recognition certificates or other processes to change legal sex/gender markers that take place in any one member state must be honored across all others. 

The court was also concerned that not allowing the change to documents that are accurate to one’s “lived gender identity” would cause friction and discrimination for affected European Union citizens. 

It ruled that when the “indication of male or female gender identity” does not “correspond to the lived gender identity” of a document holder, the document– whether identity card or passport, would “necessarily give rise to doubts about its authenticity or veracity”.

Another way to say this is that denying documents that matched lived experience, including in the specific case of trans people, would lead to what the court’s press release termed “significant inconveniences” against the protection of standing EU law.

The court’s judgement considered the Bulgarian Constitution’s provisions on “biological sex”, which are anti-trans in definition and stated that:

“EU law must be interpreted as precluding a court of a Member State from being bound by the interpretation of national legislation, given by the constitutional court of that Member State, capable of constituting a legal impediment to the recording of a change of gender data in the civil status registers of the Member State in question, in contradiction with the interpretation of EU law given by the Court of Justice.”

In other words, the Court has decided that anti-trans constitutional orders within the EU that contradict EU law cannot be enforced. 

The trans woman from Bulgaria who fought this legal fight submitted multiple appeals, and has been fighting for years. Listed only by her initials in the court ruling, K M H has won a huge benefit for trans people across the EU.

The EU continuing to move in a pro-trans direction using its existing legal framework is a great benefit for trans people.

If you support our coverage, consider subscribing to The Needle as a Gold tier supporter, at $15 a month- you'll get access to all content! For a limited time, you can get half off your first three months!

Become Gold!