EU Court: ‘No medical certificate required to rectify gender information’

Brussels – To update and correct personal gender information does not require proof of surgery, the EU Court of Justice ruled in the case of an Iranian asylum seeker in Hungary who was biologically female at the time of birth and registered as such in the EU country of arrival despite claiming to be male. Hungarian judges rejected the requests by the person concerned to modify the gender information. They sought enlightenment from Luxembourg, where the European Court judges clarified that a medical certificate of a successful sex modification operation or a medical record is not needed.

In a judgment, the EU Court of Justice ruled that to identify a person, what matters is not the biological identity assigned at birth but “the person’s lived gender identity.” Hence, the principle that “a Member State cannot rely on the absence, in its national law, of a procedure for the legal recognition of transgender identity in order to limit the exercise of the right to rectification.”

The Iranian applicant’s personal history also sheds light on the EU regulation on personal data (better known under the acronym ‘GDPR’), which has been in force since May 25, 2018. According to the Luxembourg judges, the regulation “must be interpreted as requiring a national authority responsible for keeping a public register to rectify the personal data relating to the gender identity of a natural person where those data are inaccurate, within the meaning of that regulation.” From a legal point of view, in exercising this competence, states must nevertheless comply with Union law, including the GDPR.