EU Advocate General: States must issue ID documents ‘consistent with the person’s lived gender identity’

Brussels – What one feels oneself to be is what one is. It is the view of the Advocate General of the Court of Justice of the European Union in his opinion on
an ongoing case regarding the issuance by state authorities (in this case, Bulgarian) of an identity document that includes gender data. In essence, if at birth one is registered as male or female, and then the person concerned claims that he or she belongs to the other sex, this characteristic must be registered as such, regardless of surgical treatment. 

The matter came before the Court from the Bulgarian Supreme Court, brought by a person registered at birth as male and who now feels a female gender identity, which she wants recorded in her documents, particularly in the birth certificate. 

The Bulgarian legislation, as interpreted by the national courts, does not provide for the possibility of such a
change of sex, name, and personal identification number in civil status records in
such a situation. 

In his Opinion, Advocate General Jean Richard de la Tour proposes that the Court declare that EU law
precludes national legislation, such as that interpreted by the national courts, that does not allow the legal
recognition of gender identity for its nationals, including in the absence of gender reassignment surgery, or
permit changes to their name or personal identification number to be legally recognised. “EU law also precludes
national legislation that does not allow those changes to be entered in their birth certificate, since a change to the
statements contained in their identity documents depends on such an entry,” the Court said in a statement. 

The Advocate General takes the view that, “the indication of the person’s sex in the identity document based solely on
the birth certificate established by the competent Member State gives rise, due to the purpose of that document, to
an obligation for that State to recognise the lived gender identity legally and to record it in that document.” The
purpose is to enable its holder to be identified, without giving rise to doubts about
the authenticity of the documents presented or the veracity of the data contained therein.

Therefore, national legislation, as interpreted by the national courts, which, by failing to recognise the gender
identity of a transgender person, prevents that person from enjoying a right guaranteed by EU law, such as
obtaining an identity document enabling them to freely exercise their right to move and reside within the territory
of the Member States, constitutes a restriction on that right. “Such a restriction may only be justified by objective
considerations that are proportionate to a legitimate aim, which is not the case here,” the Advocate General said.

The Advocate General proposes that the Court should rule that, in principle, it is incumbent on the referring court,
without waiting until the national legislation at issue is amended by legislation or other constitutional means, to
interpret it in the light of EU law. That interpretation must, in particular, comply with the rules on freedom of
movement and residence, respect for private life and the issue of identity documents or, if necessary, by disapplying
that legislation. 

Finally, the Advocate General takes the view that the exercise, by a transgender person, of his or her right to
legally register his or her transgender identity for the purpose of obtaining an identity card or passport
corresponding to his or her gender identity cannot be subject to the production of evidence of gender
reassignment surgery. “Such a requirement would undermine, in particular, the right to respect for private life.”