Introduction
On 13 March 2025, the First Chamber of the EU Courtroom 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 based mostly 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 Common Information Safety Regulation (GDPR).
The Courtroom dominated out this follow, thus affirming that surgical therapy just isn’t a related situation to profit from a proper stemming from EU regulation. This choice 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 regulation. This occurs not solely through the standard non-discrimination regulation but in addition by means of 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 deal with 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 utility 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 delivery, 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). Nevertheless, the Hungarian authorities rejected that request based mostly 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 Courtroom, which referred three preliminary inquiries to the CJEU:
– whether or not the best 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 offer medical proof of the gender transition and, specifically, proof of surgical therapy to rectify the information contained within the asylum register.
B. Judgment of the Courtroom
Within the questions referred to the CJEU, rectifying one’s gender marker is framed as a technical difficulty of information accuracy. No elementary rights provision is talked about – not even in a complementary method. Nonetheless, following the Opinion of the Advocate Common squarely, the Courtroom highlighted the broader elementary rights dimension of information safety. Specifically, the Courtroom confused that the best 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 Courtroom emphasised that the target pursued by the GDPR is to make sure ‘a excessive degree of safety of the basic rights and freedoms of pure individuals’, notably the best 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). Nevertheless, the Courtroom didn’t point out the best to respect for personal life contained in Article 7 CFREU, which encompasses the best 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 Courtroom failed to spotlight (a minimum of, on this half) the extra private and intimate elements of the best to knowledge rectification.
On the primary query
The Courtroom then began its evaluation of the primary query by stating that the best to rectification contained in Article 16 GDPR should be learn in gentle of the precept of accuracy established in Article 5(1)(d) (para. 25). On this context, the Courtroom identified that the evaluation of whether or not private knowledge is correct and full should be accomplished contemplating the aim for which these knowledge have 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 check with their lived gender identification, and to not the intercourse assigned at delivery (para. 32).
Moreover, whereas the best to rectification can, in precept, be restricted, this may be accomplished solely via 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 discovering that VP had not supplied proof of their gender identification (para. 36). However, the Courtroom highlighted that the best to rectification can’t be restricted by the only truth {that a} Member State doesn’t present for authorized gender recognition (LGR) procedures inside its home authorized system. In opposition to this backdrop, the Courtroom recalled its earlier case regulation on trans* rights. Whereas the Member States retain competence to control LGR procedures, they can not completely refuse to recognise a person’s gender transition if this prevents them from fulfilling a situation that should be met to get pleasure from a proper protected by EU regulation (para. 37). On this case, the non-recognition of VP’s gender identification prevented them from being entitled to the best to knowledge rectification underneath Article 16 of the GDPR.
On the second and third questions
On the second and third questions, the Courtroom repeated that the best to rectification might be restricted by, as an example, requiring proof of an undertaken gender transition. But, such a restriction should be adopted by means of legislative measures. As well as, it should respect the essence of the basic rights and freedoms and be mandatory and proportionate (paras. 41-42).
Nevertheless, the refusal of Hungarian authorities was based mostly on the only discovering that the applicant didn’t endure gender reassignment surgical procedure. This quantities to an administrative follow developed by Hungarian authorities, which doesn’t fulfil the requirement of a legislative measure (para. 44).
Furthermore, the Courtroom discovered that such follow is liable to undermine the best to the integrity of the particular person and the best to respect for personal life, protected by Article 3 and Article 7 CFREU respectively (para. 45). That is additionally evident from the case regulation of the European Courtroom 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 therapy’ (see ECtHR, case X and Y v Romania). Lastly, such administrative follow just isn’t mandatory or proportionate, as a medical certificates constitutes enough proof (para. 49).
C. The CJEU and Trans* Rights: Lastly Past Medicalisation?
The case regulation of the CJEU has performed an important function within the development of the rights of transgender people underneath EU regulation (see Dunne). Since its landmark ruling in P v S (C-13/94), the Courtroom recognised discrimination based mostly 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 complete spectrum of EU gender equality laws applies to discrimination based mostly on gender reassignment.
Nevertheless, this case regulation entails a big limitation: the medicalised understanding of transgender identification. Specifically, ‘gender reassignment’ consists of solely these transgender people who’ve undergone surgical therapy. This method replicates a binary understanding of gender and excludes from the scope of EU non-discrimination regulation a big proportion of the trans* inhabitants, together with non-binary people.
The gradual shift of Mirin, Mousse and Deldits
Whereas the ‘medicalised method’ of this case regulation 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 regulation. 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 obligatory alternative between ‘Madame’ and ‘Monsieur’ when buying an internet prepare ticket is incompatible with the precept of information minimisation underneath Article 5(1)(c) GDPR. Thus, the CJEU held that the follow of accumulating knowledge associated to an individual’s gender just isn’t mandatory and will result in discrimination based mostly on gender identification. As famous by Bruno, this case additional confirms the potential of the GDPR to broaden the authorized safety of trans* rights underneath EU regulation.
Considerably, a mixed studying of those three circumstances (Mirin, Mousse and Deldits) means that the CJEU is abandoning its ‘medicalised method’. On the one hand, the Courtroom modified its terminology. In earlier case regulation (P v S, KB, Richards and MB), the CJEU solely referred to ‘gender reassignment (surgical procedure)’. In contrast, within the current trilogy of circumstances, the Courtroom 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. Alternatively, in each Mirin and Mousse, the Courtroom ignored whether or not the candidates had undergone reassignment surgical procedure. Thus, one may suggest that surgical procedure was now not a related situation to profit from a proper stemming from Union regulation.
In Deldits, which constitutes the final brick of this trilogy, the CJEU makes the shift in its case regulation 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 regulation. The Courtroom unequivocally held that it’s not: a medical certificates confirming the gender transition of a person constitutes enough proof.
Moreover, this conclusion was grounded in a sturdy elementary rights narrative. The Courtroom 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 Courtroom did so regardless of the entire absence of those Constitution provisions within the preliminary questions of the referring Courtroom. Furthermore, the CJEU expressly relied on Article 8 ECHR and the associated case regulation 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 therapy 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 regulation. From one perspective, this growth considerations the authorized instruments. Historically, the rights of transgender people have been addressed primarily by means of EU non-discrimination regulation. The current case regulation demonstrates that EU regulation can also be able to conferring rights to trans* individuals horizontally by means of authorized devices that aren’t explicitly designed to sort out problems with gender identification. In Mirin, as an example, the mutual recognition obligation was established through 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 verify the evolution of the CJEU’s case regulation in the direction of a complete understanding of transgender identification past medicalisation. In Mirin and Mousse, this improvement remained solely implicit or potential, because the Courtroom didn’t instantly tackle surgical therapy. Considerably, Deldits marks a turning level: the irrelevance of gender reassignment surgical procedure just isn’t solely mentioned explicitly but in addition firmly grounded in strong elementary rights reasoning. This improvement will clearly impression the Courtroom’s case regulation on EU non-discrimination regulation, which has been restricted to gender reassignment. In any other case, how can the Courtroom clarify that surgical therapy is important for accessing EU non-discrimination regulation 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 regulation at Maastricht College. His analysis focuses on LGBTIQA+ rights’ safety underneath EU regulation. Alessandro holds a Grasp’s Diploma in Legislation from the College of Bologna and an LL.M. in EU regulation from Université libre de Bruxelles.
