Pre-print article on SSRN on “Mirin” and the Future of Cross-Border Gender Recognition – Conflict of Laws

I lately printed the pre-print model of an article on SSRN that was accepted by the Worldwide Journal of Regulation, Coverage and the Household. The article is named ““Mirin” and Past: Gender Identification and Personal Worldwide Regulation within the EU“. The article is a part of a particular challenge coping with questions of gender id that (in all probability) will come out firstly of 2026.

Because it offers with issues of personal worldwide legislation (concerning gender id) and the CJEU determination “Mirin”, I believed it is perhaps fascinating for the readers of this weblog to get a brief abstract of the article. If it sparks your curiosity, in fact, I might be glad in case you think about studying the entire textual content – and to obtain suggestions and additional ideas on this subject. 🙂

I. Divergence in Nationwide Gender Dedication Methods as Beginning Level

Nationwide authorized techniques show vital divergence in how authorized gender is decided and adjusted. Approaches fluctuate extensively, overlaying techniques the place the self-determination of the person is basically ample, generally requiring solely a self-declaration (e.g., Germany, Iceland, Eire, Malta, and Spain). Moreover, some jurisdictions have adopted non-binary gender choices (e.g., Austria, Germany, Iceland, Malta, and the Netherlands).

Nonetheless, this liberal pattern is countered by explicitly restrictive techniques. For instance, in Spring 2025, Hungary launched its twenty fifth constitutional modification, which stipulates that Hungarian residents are solely female and male.

This fragmented authorized panorama isn’t just a theoretical challenge. It’s the direct explanation for profound sensible and authorized issues for people who stay, work, and journey inside the supposedly borderless European Union. Thus, questions of PIL develop into paramount for the person involved.

II. The Personal Worldwide Regulation Framework: Selection of Regulation vs. Recognition

In worldwide conditions regarding gender willpower, PIL distinguishes between two eventualities: figuring out the relevant legislation (Selection of Regulation guidelines) when an individual seeks to alter or register their authorized gender, and addressing the popularity or acceptance of a authorized state of affairs already created overseas. Each eventualities have in widespread that the general public coverage exception can limit the appliance or recognition/acceptance of international legislation. The article will take care of all three issues individually.

A. Relevant Regulation and Social gathering Autonomy

Authorized gender is usually categorized as a part of an individual’s private standing. In conventional battle of legal guidelines regimes, this interprets right into a connecting issue referring to the person’s nationality. Nonetheless, current legislative developments exhibit a bent towards restricted celebration autonomy. E.g., the Swiss PIL Code, since 2022, applies the legislation of residence however grants the person the choice to decide on the legislation of their nationality. Equally, the brand new German PIL rule on gender id primarily refers to nationality however permits a selection for German legislation if the individual has their ordinary residence in Germany. This incorporation of selection is coherent in techniques prioritizing particular person self-determination, because the individual is considered as accountable and able to making choices concerning their very own gender id, and, subsequently, the legislation relevant to this query.

B. Recognition/Acceptance and Portability of Standing

The popularity or acceptance of a gender standing established overseas is essential for making certain the continuity and stability of the standing. Recognition or acceptance, as all people right here will know, typically follows two paths:

Procedural Recognition: This historically applies to international judgments however has been prolonged in some jurisdictions (like Malta) to cowl different acts by public authorities, reminiscent of a international registration of standing. Moreover, on the whole we will see a bent to increase the notion of “judgment” because of the lowering function of judges in standing questions and the rising involvement of registries and notaries.
Non-procedural Recognition: This includes both reviewing the standing utilizing the home battle of legal guidelines guidelines (the “PIL take a look at”) or using separate guidelines designed explicitly to reinforce the portability and acceptance of a standing established overseas. Such separate guidelines sometimes require solely minimal requirements and a public coverage management. There appears to be a normal tendency inside PIL to reinforce the popularity or acceptance of international gender willpower, as stability and continuity of standing are main pursuits. It is perhaps possible that nations utilizing the PIL take a look at rethink whether or not this take a look at is critical or whether or not the introduction of separate, simpler guidelines is perhaps potential. Personal Worldwide Regulation logic doesn’t require such a take a look at.

C. Public Coverage Restrictions and the ECHR

Any recognition or acceptance of a authorized state of affairs created overseas could be refused in case of a public coverage (ordre public) violation. Concerning gender id, public coverage points often come up both attributable to radical variations in strategy (e.g., self-determination vs. organic focus) or the acceptance of gender choices unknown to the discussion board (non-binary gender in a binary system). The article seems to be at completely different nationwide approaches how one can deal with public coverage issues. It discusses briefly – and really critically – the Swiss Courtroom determination concerning the (non-)recognition of a non-binary gender registration. Since gender varieties a part of a person’s id, character, and dignity, causes for refusal should be balanced towards the person’s curiosity within the continuity of standing and avoiding disadvantages attributable to having completely different genders in several jurisdictions. This reasoning is supported by the case legislation of the European Courtroom of Human Rights (ECtHR). In response to this case legislation, a refusal based mostly on public coverage should stay a uncommon exception and requires a manifest violation. “Mere administrative causes” or “sure inconveniences” are inadequate to justify the denial of recognition.

III. The “Mirin” Impact: EU Regulation and Human Rights Synergy

After setting the scene, the article now seems to be on the CJEU determination “Mirin“. Crucially, “Mirin” mixed EU main legislation with the safety afforded by the EU Constitution of Elementary Rights (Article 7), decoding it in keeping with the ECtHR’s jurisprudence beneath Article 8 ECHR

As all of us in all probability know, the CJEU has already established a protracted custom of utilizing Article 21TFEU to make sure (to a sure restrict) standing portability inside the EU concerning names, marriage, and filiation.

The “Mirin” ruling (C-4/23) utilized the identical logic to gender id. The case concerned a Romanian citizen who obtained a gender reassignment within the UK (then nonetheless an EU Member State) however was denied registration in Romania as a result of Romanian legislation required a brand new continuing in line with Romanian legislation.

A. Recognition/Acceptance of a Binary Gender Standing

The synthesis of EU Free Motion and Elementary Rights led the CJEU to conclude that the Romanian State should acknowledge or settle for a gender validity established in one other Member State. As earlier determined by the ECtHR, the proceedings supplied beneath Romanian legislation violate Article 8 ECHR, thus, referring the Romanian citizen to those proceedings can’t be a method to justify the obstacle of the proper derived from Article 21 TFEU.

What does this imply for different Member States?

Different Member States, which give completely different nationwide proceedings to adapt the authorized gender, may theoretically refer the person to a fast, clear, and accessible home reassignment process. Nonetheless, that is solely permitted if it doesn’t place an “extreme burden” on the person.

Due to this fact, recognition, for my part, could be compulsory additionally in circumstances the place a nationwide continuing is much less burdensome than the Romanian one. The CJEU indicated {that a} new home continuing is simply too burdensome if the dearth of instant recognition jeopardizes the continuity of different important statuses—reminiscent of filiation or marriage—that rely upon the gender recorded overseas. For example, if an individual is registered as a “mom” within the first state, a requirement to endure a brand new gender registration process that briefly destabilizes that parental standing may, for my part, necessitate direct recognition of the standing acquired overseas to adjust to EU legislation.

B. Recognition/Acceptance of a Non-binary Gender Standing

The state of affairs concerning non-binary gender markers, which the ECtHR has beforehand said stay inside the discretion of every State to introduce, is extra nuanced, because the ECtHR left it to the discretion of the Member States whether or not to introduce a non-binary gender. Nonetheless, for my part, the “Mirin” rules severely limit a Member State’s capability to invoke ordre public to disclaim recognition of an unknown non-binary standing.

Member States can solely deny recognition/acceptance if the refusal relies on elementary, constitutional-level values that will be manifestly violated by recognition/acceptance. The state can’t justify denial by citing “mere administrative causes” or “sure inconveniences” associated to their civil standing system. In accordance with the ECtHR and CJEU case legislation, the Member States must show that recognition of a non-binary gender would genuinely disrupt their constitutional orders. The Hungarian constitutional modification limiting residents to female and male may function an try to ascertain such a constitutional worth, although its authorized scope is restricted to Hungarian residents

IV. Closing Conclusions

My closing conclusions learn as follows:

Relevant legislation to find out or change the gender in a home case with a world aspect requires a rule completely different from non-public worldwide legislation guidelines coping with the popularity/acceptance of a gender willpower from overseas. Methods that concentrate on gender id and self-determination ought to permit people a selection of legislation between at the very least nationality and ordinary residence. One may also think about extending that option to the lex fori.
If a procedural recognition of a courtroom determination isn’t potential, jurisdictions ought to present a rule permitting acceptance of a gender registered accurately overseas if sure minimal requirements are fulfilled.
Recognition/acceptance of a gender reassignment or an unknown non-binary gender willpower ought to solely be refused for public coverage causes in very distinctive circumstances, esp. in these of abuse of the legislation or power towards the person.
Following the CJEU’s newest determination, “Mirin”, EU Member States must recognise or settle for a gender that has been validly established in one other Member State inside the binary gender system. Beneath uncommon circumstances, it is perhaps potential to refer the people to a fast and clear nationwide continuing.
Recognition/acceptance of a non-binary gender in an EU Member State that follows the binary gender system can solely be refused for public coverage causes if the recognising Member State gives ample proof that the popularity wouldn’t solely represent “sure inconveniences” within the recognising Member State.