Introduction
On 13 March 2025, the First Chamber of the EU Court docket of Justice (CJEU) delivered its judgment in Deldits (C-247/23). The dispute involved the refusal of Hungarian authorities to replace the gender marker (from F-emale to M-ale) of a transgender refugee primarily based on the discovering that the applicant had not undergone gender reassignment surgical procedure. Apparently, the case was not constructed on any elementary rights declare however solely on compliance with the precept of accuracy established in Article 5(1)(d) of the Basic Information Safety Regulation (GDPR).
The Court docket dominated out this observe, thus affirming that surgical remedy will not be a related situation to profit from a proper stemming from EU legislation. This determination is momentous for a number of causes. In a second when trans* rights are underneath systemic assaults globally, the CJEU is increasing the safety of these rights underneath EU legislation. This occurs not solely by way of the standard non-discrimination legislation but additionally by different authorized devices, such because the GDPR. Extra importantly, this case marks a turning level for the CJEU’s departure from its medicalised understanding of transgender identification. Notably, this piece will give attention to the latter improvement.
A. Factual Background and Preliminary Questions
The dispute involved VP, an Iranian nationwide who obtained refugee standing in Hungary, the place they resided since 2014. In help of their software to acquire refugee standing, VP relied on their transgender identification and thus produced medical certificates issued by specialists in psychiatry and gynaecology. All these paperwork point out that whereas VP was assigned feminine at beginning, their gender identification was male. However, VP was registered as a feminine within the asylum register managed by the Hungarian asylum authority. In 2022, VP submitted a request to that authority to rectify their gender marker (from F-emale to M-ale). Nonetheless, the Hungarian authorities rejected that request primarily based on the discovering that VP didn’t endure gender reassignment surgical procedure.
Subsequently, VP lodged an motion for annulment of that call earlier than the Budapest Excessive Court docket, which referred three preliminary inquiries to the CJEU:
– whether or not the precise to rectification in Article 16 GDPR, learn in gentle of the precept of accuracy established in Article 5(1)(d), required nationwide authorities to rectify the information relating to the gender identification of a person;
– whether or not there’s a requirement to supply medical proof of the gender transition and, specifically, proof of surgical remedy to rectify the information contained within the asylum register.
B. Judgment of the Court docket
Within the questions referred to the CJEU, rectifying one’s gender marker is framed as a technical concern of knowledge accuracy. No elementary rights provision is talked about – not even in a complementary method. Nonetheless, following the Opinion of the Advocate Basic squarely, the Court docket highlighted the broader elementary rights dimension of knowledge safety. Particularly, the Court docket burdened that the precise to acquire rectification of incorrect private knowledge underneath Article 16 GDPR provides particular expression to the basic proper contained in Article 8(2) CFREU (para. 24). Accordingly, the Court docket emphasised that the target pursued by the GDPR is to make sure ‘a excessive stage of safety of the basic rights and freedoms of pure individuals’, notably the precise to privateness with respect to the processing of private knowledge expressed in Article 8(1) of the Constitution and Article 16(1) TFEU (para. 27). Nonetheless, the Court docket didn’t point out the precise to respect for personal life contained in Article 7 CFREU, which encompasses the precise of trans* individuals to respect for and recognition of their gender identification (see Mirin, para. 64). Whereas this provision got here again within the evaluation of the third query, the Court docket failed to spotlight (no less than, on this half) the extra private and intimate features of the precise to knowledge rectification.
On the primary query
The Court docket then began its evaluation of the primary query by stating that the precise to rectification contained in Article 16 GDPR have to be learn in gentle of the precept of accuracy established in Article 5(1)(d) (para. 25). On this context, the Court docket identified that the evaluation of whether or not private knowledge is correct and full have to be completed contemplating the aim for which these knowledge had been collected (para. 26). If the aim is the identification of the particular person involved, because it was within the case at hand, the information collected ought to consult with their lived gender identification, and to not the intercourse assigned at beginning (para. 32).
Moreover, whereas the precise to rectification can, in precept, be restricted, this may be completed solely by the use of a legislative measure and for causes of normal public curiosity underneath Article 23 GDPR. Within the current case, the restriction didn’t stem from any legislative measure, however from the only real discovering that VP had not supplied proof of their gender identification (para. 36). However, the Court docket highlighted that the precise to rectification can’t be restricted by the only real reality {that a} Member State doesn’t present for authorized gender recognition (LGR) procedures inside its home authorized system. In opposition to this backdrop, the Court docket recalled its earlier case legislation on trans* rights. Whereas the Member States retain competence to control LGR procedures, they can’t solely refuse to recognise a person’s gender transition if this prevents them from fulfilling a situation that have to be met to take pleasure in a proper protected by EU legislation (para. 37). On this case, the non-recognition of VP’s gender identification prevented them from being entitled to the precise to knowledge rectification underneath Article 16 of the GDPR.
On the second and third questions
On the second and third questions, the Court docket repeated that the precise to rectification may very well be restricted by, as an illustration, requiring proof of an undertaken gender transition. But, such a restriction have to be adopted by legislative measures. As well as, it should respect the essence of the basic rights and freedoms and be mandatory and proportionate (paras. 41-42).
Nonetheless, the refusal of Hungarian authorities was primarily based on the only real discovering that the applicant didn’t endure gender reassignment surgical procedure. This quantities to an administrative observe developed by Hungarian authorities, which doesn’t fulfil the requirement of a legislative measure (para. 44).
Furthermore, the Court docket discovered that such observe is liable to undermine the precise to the integrity of the particular person and the precise to respect for personal life, protected by Article 3 and Article 7 CFREU respectively (para. 45). That is additionally evident from the case legislation of the European Court docket of Human Rights (paras. 46-48), which had already dominated that the authorized recognition of the gender identification of a transgender particular person ‘can’t be made conditional on the completion of surgical remedy’ (see ECtHR, case X and Y v Romania). Lastly, such administrative observe will not be mandatory or proportionate, as a medical certificates constitutes ample proof (para. 49).
C. The CJEU and Trans* Rights: Lastly Past Medicalisation?
The case legislation of the CJEU has performed a vital function within the development of the rights of transgender people underneath EU legislation (see Dunne). Since its landmark ruling in P v S (C-13/94), the Court docket recognised discrimination primarily based on gender reassignment as a type of intercourse discrimination. Furthermore, subsequent judgements in circumstances KB (C-117/01) and Richards (C-423/04) additional strengthened the precept established in P v S, confirming that the total spectrum of EU gender equality laws applies to discrimination primarily based on gender reassignment.
Nonetheless, this case legislation entails a big limitation: the medicalised understanding of transgender identification. Particularly, ‘gender reassignment’ consists of solely these transgender people who’ve undergone surgical remedy. This strategy replicates a binary understanding of gender and excludes from the scope of EU non-discrimination legislation a big share of the trans* inhabitants, together with non-binary people.
The gradual shift of Mirin, Mousse and Deldits
Whereas the ‘medicalised strategy’ of this case legislation has been extremely criticised within the literature (see Bell), the CJEU has not too long ago dominated in a set of circumstances that additional enhanced the safety of trans* individuals underneath EU legislation. First, in Mirin (C-4/23), the CJEU established a mutual recognition obligation for gender transition. The Member States should recognise the gender transition legally accomplished in one other Member State – and thus rectify identification paperwork and civil standing entries with the acquired gender marker of the particular person involved. Second, in Mousse (C-394/23), the CJEU held that the necessary selection between ‘Madame’ and ‘Monsieur’ when buying a web-based prepare ticket is incompatible with the precept of knowledge minimisation underneath Article 5(1)(c) GDPR. Thus, the CJEU held that the observe of gathering knowledge associated to an individual’s gender will not be mandatory and will result in discrimination primarily based on gender identification. As famous by Bruno, this case additional confirms the aptitude of the GDPR to develop the authorized safety of trans* rights underneath EU legislation.
Considerably, a mixed studying of those three circumstances (Mirin, Mousse and Deldits) means that the CJEU is abandoning its ‘medicalised strategy’. On the one hand, the Court docket modified its terminology. In earlier case legislation (P v S, KB, Richards and MB), the CJEU completely referred to ‘gender reassignment (surgical procedure)’. Against this, within the current trilogy of circumstances, the Court docket solely referred to the ‘(gender) identification’ of the candidates. This vocabulary mirrors a extra inclusive and nuanced understanding of the trans* inhabitants, which is liable to embody non-binary people and trans* individuals who haven’t undertaken surgical procedure. However, in each Mirin and Mousse, the Court docket ignored whether or not the candidates had undergone reassignment surgical procedure. Thus, one might suggest that surgical procedure was not a related situation to profit from a proper stemming from Union legislation.
In Deldits, which constitutes the final brick of this trilogy, the CJEU makes the shift in its case legislation evident. The ruling instantly addressed the query of whether or not gender reassignment surgical procedure is a related situation for the enjoyment of a proper derived from EU legislation. The Court docket unequivocally held that it’s not: a medical certificates confirming the gender transition of a person constitutes ample proof.
Moreover, this conclusion was grounded in a sturdy elementary rights narrative. The Court docket constantly referred to the Constitution, particularly its Article 3 (proper to the integrity of the particular person) and Article 7 (proper to respect for personal life). Apparently, the Court docket did so regardless of the whole absence of those Constitution provisions within the preliminary questions of the referring Court docket. Furthermore, the CJEU expressly relied on Article 8 ECHR and the associated case legislation of the ECtHR, which constantly held that the popularity of the gender transition of a transgender particular person ‘can’t be made conditional on the completion of surgical remedy not desired by that particular person’ (ECtHR, Case X and Y v Romania).
Conclusions
The current judgments in Mirin, Mousse, and Deldits replicate a twofold growth of trans* rights underneath EU legislation. From one perspective, this growth issues the authorized instruments. Historically, the rights of transgender people have been addressed primarily by EU non-discrimination legislation. The current case legislation demonstrates that EU legislation can be able to conferring rights to trans* individuals horizontally by authorized devices that aren’t explicitly designed to deal with problems with gender identification. In Mirin, as an illustration, the mutual recognition obligation was established by way of EU citizenship and free motion rights. Likewise, the rulings in Mirin and Deldits relied on two ideas established within the GDPR.
Deldits, from one other perspective, appears to substantiate the evolution of the CJEU’s case legislation in direction of a complete understanding of transgender identification past medicalisation. In Mirin and Mousse, this improvement remained solely implicit or potential, because the Court docket didn’t instantly tackle surgical remedy. Considerably, Deldits marks a turning level: the irrelevance of gender reassignment surgical procedure will not be solely mentioned explicitly but additionally firmly grounded in sturdy elementary rights reasoning. This improvement will clearly influence the Court docket’s case legislation on EU non-discrimination legislation, which has been restricted to gender reassignment. In any other case, how can the Court docket clarify that surgical remedy is crucial for accessing EU non-discrimination legislation protections, but it’s not deemed mandatory for the rights granted underneath GDPR?
Alessandro Marcia (He/Him) is a Ph.D. Researcher and Lecturer of EU legislation at Maastricht College. His analysis focuses on LGBTIQA+ rights’ safety underneath EU legislation. Alessandro holds a Grasp’s Diploma in Regulation from the College of Bologna and an LL.M. in EU legislation from Université libre de Bruxelles.
