The European Court of Justice (ECJ) has ruled member states must allow their citizens to have their gender changed in official documents – even if this contravenes national laws.
The case C-43/24 Shipova concerned a Bulgarian national who was born a man, later underwent hormone treatment in Italy and has since been living there as a woman.
The plaintiff said she was elated by today’s ruling: “This decision will finally allow me to have a Bulgarian passport that respects what I have always been since I can remember, since my childhood: A woman.
“I chose to live in Italy a long time ago, and this formal step will finally allow me to find a job without being discriminated against.”
She had demanded that the Bulgarian authorities change her official sex from “male” to “female” on her Bulgarian birth certificate as well as other identification documents. The authorities declined, leading her to file a suit with a court in Bulgaria.
The Bulgarian Court of Cassation noted that according to national law the term “sex” was to be understood in its biological sense, which forbids any changes of the plaintiff’s sex or name.
The Court ruled that the public interest, based on the moral and religious values of Bulgarian society, prevailed over the interests of transgender persons.
The Bulgarian Court of Cassation, though, doubted whether these national laws were compatible with European Union law, referring the case to the ECJ.
The ECJ ruled that a discrepancy between a person’s “lived gender identity” and the gender data appearing on their identity card would “hinder the exercise of his or her right to freedom of movement”.
Specifically, such a discrepancy would oblige the person in question “to dispel doubts about his or her identity or the authenticity of his or her official documents” in many everyday situations, particularly during identity checks or cross-border travel.
Such a restriction of the freedom of movement could only be accepted if it was proportional and based on objective public-interest considerations. This was not the case in the case at hand.
Moreover, the EU Charter of Fundamental Rights, especially the right to respect for private life, would also protect a person’s gender identity. Member states are therefore required to provide “clear, accessible, and effective procedures for their legal recognition”, according to the ECJ.
Reportedly, dozens of similar cases are currently on hold in Bulgaria in anticipation of the ECJ’s ruling.
According to the plaintiff’s lawyer, Alexander Schuster, the ruling also applied to other member states that refused to issue gender-appropriate documents, including Hungary and Slovakia.
