The Court of Justice of the European Union (CJEU) issued a ruling on Thursday, March 12th, that will oblige all member states to recognise a modify of sex in certain circumstances, even when national legislation does not allow it.
The decision, built public in Luxembourg, states that denying a citizen the right to modify their registered sex is contrary to European Union law.
The ruling arises from a case originating in Bulgaria, where national legislation interprets the term “sex” in a biological sense and does not allow the data in the civil register to be altered. The European Court of Justice considers that such an interpretation may violate EU law when it affects the exercise of rights derived from European citizenship.
According to the judgment, the discrepancy between a person’s declared gfinisher identity and the sex displayn on official documents may create everyday life more difficult, especially during identity checks, travel, or professional activities in other member states. For that reason, the CJEU concludes that states must allow effective procedures for the legal recognition of a “sex modify” when the right to reside and work in another member state is at stake.
The court also stresses that, although the issuing of identity documents remains the competence of the member states, that competence must be exercised in compliance with EU law and the Charter of Fundamental Rights, which includes the right to respect for private life and personal identity.
Clash with national legislation
The decision directly affects countries whose laws maintain a strictly biological definition of sex or impose very restrictive requirements for its legal modification.
In the case examined, the Bulgarian Supreme Court of Cassation had rejected an application for regisattempt modify arguing that the public interest and the social values of the counattempt prevailed over the individual request.
The CJEU, however, maintains that such limitations may only be accepted if they are justified by objective reasons and are proportionate, something it declares it does not find in this case.
The ruling does not oblige states to adopt a specific regulatory model, but it does prevent them from absolutely denying recognition of a modify of sex when the person has exercised rights derived from European citizenship.
In practice, this means that even countries with more restrictive legislation will have to adapt their procedures in order to comply with Union law.
One of the most sensitive points of the judgment concerns the relationship between EU law and national constitutional courts. The CJEU expressly states that EU law prevails even when an interpretation by a member state’s constitutional court prevents the application of EU law as interpreted by the European court itself.
This statement once again raises questions about the limits of that primacy and about the real margin that states retain in sensitive matters such as civil law, personal identity, or the organisation of civil registries.
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