On 4 September in the Shipov case, the Advocate General of the Court of Justice of the European Union (CJEU) responded to preliminary questions from the Bulgarian Supreme Court. Are Bulgarian authorities obliged under EU law to allow a trans person to change the gender marker on their identity documents?

Legal gender recognition of trans persons in Europe

Currently, no established obligation exists under EU law for Member States to recognise and register trans persons’ lived gender identity. Bulgaria, Estonia and Hungary do not provide for any possibility to do so. Of the 27 EU Member States, 12 still impose (abusive) medical requirements to confirm a gender marker change. Only 9 countries allow the registration of lived gender identity based on self-identification (see the map).

Recent landmark rulings

In recent years, the CJEU has taken landmark decisions towards the development of more protective legislation. In the Mousse case, the Court found that it is unlawful for all public and private organisations bound by the General Data Protection Regulation (GDPR) to collect data linked to gender when this is not strictly necessary. In Deldits, the CJEU upheld the right of asylum seekers to have their lived gender identity correctly registered in the asylum registry and other registers even when a legal gender recognition procedure does not exist in the receiving state. Finally, in Mirin, the Court established that states have an obligation to recognise gender marker changes obtained in other Member States.

The Advisory Opinion in Shipov : moving forward

The Shipov case concerns a Bulgarian trans woman, currently living in Italy, who was denied changing her first name and gender marker on her identity documents and the corresponding rectification on her birth certificate by the Bulgarian authorities. She highlighted that presenting herself as female, she encountered problems on a daily basis due to the discrepancy between her lived gender identity and the one registered on her identity documents.

No procedure exists under Bulgarian law to change one’s name and gender marker based on one’s trans identity. The Bulgarian court argued that such a procedure would be incompatible with the Bulgarian constitution which defines ‘gender’ ‘exclusively in the biological sense’. It also raised the issue that allowing for such changes would have a negative impact on the (potential) children of the applicant. It thus asked the CJEU whether EU law precluded Bulgaria from prohibiting legal gender recognition for trans persons.

A groundbreaking opinion on trans rights in the EU

It is the first time that the CJEU has dealt with a case regarding the obligation to recognise a trans person’s lived gender identity by a Member State which does not provide for such a procedure. Responding to the Bulgarian state, the Advocate General stated that it would be contrary to the freedom of movement, the right to non-discrimination and the right to privacy to forbid legal gender recognition. He went as far as stating that all Member States have an ‘obligation to legally recognise the lived gender identity and to record it’ in the birth certificate of the applicant.

The main argument to back this claim is based on the right to free movement of EU citizens. The Advocate General argues that if the applicant cannot obtain a travel document which matches her lived gender identity, then she risks being questioned as to the authenticity of the document which will ultimately limit her ability to travel freely across EU borders. The Advocate General then highlights the requirement already established by the European Court of Human Rights that the procedure to change one’s gender marker should be quick, transparent and accessible.

It remains to be seen how the Bulgarian courts will receive this opinion and implement it as it does not have direct binding value, but mainly provides for guidance on the interpretation of EU law.

A sliver of hope in a dark political climate

This advisory opinion comes in a political climate in which the rights of trans persons are being attacked from various directions. It is then welcome to see the Advocate General dismiss popular arguments such as the idea that the recognition of trans rights would endanger children. Although the vocabulary in the administrative part of this opinion is deplorable – using the wrong pronouns for the applicant – the Advocate General does refer to her correctly in his analysis which is far from the norm in the Court’s case law.

This advisory opinion, thus, provides a small glimmer of hope that the CJEU will pursue the protection of trans rights, even where states like Bulgaria are firmly dedicated to denying the basic human rights and dignity of its trans citizens.