AG De La Tour’s Opinion in Mirin on the Recognition of Change of Gender
The author of this post is Helga Luku, a PhD researcher at the University of Antwerp.
In his opinion of 7 May 2024 in C-4/23, Mirin, Advocate General (AG) Richard De la Tour asserted that the refusal of the recognition in one Member State of a change of gender obtained in another Member State by a national of both States would violate the right to move and reside freely within the Union under Article 21 Treaty of Functioning of European Union (TFEU) and Article 45 of the Charter of Fundamental Rights (Charter), and the right of respect for private and family life enshrined in Article 7 of the Charter.
Facts of the Case
M.-A.A., born on 25 August 1992, in Romania, was registered as female at birth. After moving to the UK the applicant obtained that State nationality on 21 April 2016. One year later, the applicant, identifying as male changed the name and title from Ms. to Mr. through the deed poll procedure. This change was reflected in various UK documents, including the driving licence and passport. Despite obtaining a ‘Gender Recognition Certificate’ in 2020 affirming his male identity, Romanian authorities refused to amend the applicant’s birth certificate to reflect these changes, upon his request in 2021.
In the action brought before the Court of First Instance in Bucharest, Romania, M.-A. A. seeks to have his birth certificate brought into line with his gender identity, which has already been recognised in the UK. He argues for the direct application of EU law, particularly the right to free movement and residence within the EU. Romanian authorities contend that changes made abroad cannot be recognised under their domestic law without a final judicial decision. The obligation to bring new judicial proceedings in Romania directly seeking authorisation of the change of sex exposes the applicant to the risk that the outcome of those proceedings will be contrary to the outcome before the UK authorities
The referring court decided to stay the proceedings and essentially asks the Court of Justice whether the refusal to recognise changes in the civil status of a Union citizen from Romanian authorities complies with EU law. Further, it asks whether Brexit impacted the current case, as the UK proceedings were initiated before Brexit and concluded during the transition period.
Analysis of the Advocate General
The link with EU law
AG De La Tour starts his analysis by establishing the link between the present case with EU law. He clarifies that none of the existing EU legal instruments, i.e., Brussels I, Brussels II, or Regulation (EU) 2016/1191, is applicable. Highlighting the absence of EU legislation on Union citizens’ civil status, he draws upon previous Court of Justice case law on first names and surnames. The applicant’s situation – as a Union citizen who exercised the freedom to move and reside in another Member State and seeks recognition of rights acquired in the UK, an EU Member State at the time – falls within the purview of EU law.
As regards the second question, he opines that at the time when the name and gender were changed in the UK, the latter was still an EU Member State and EU law was still applicable.
Recognition of civil status changes in names and gender
a) Change of first name
In its analysis, the AG notes that the refusal to recognise the first name – which together with the surname is a constituent element of a person’s identity and private life (Article 7 of the Charter and Article 8 of the European Convention on Human Rights) – acquired in another Member State, constitutes a restriction of the freedoms recognised by Article 21 of the TFEU for every citizen of the Union. The reasons, put forward by Romanian authorities and the referring court, do not justify such a refusal to recognise and enter in the birth certificate the new first name of the applicant.
At this point, AG De la Tour deems it crucial to distinguish the recognition of the first name from the recognition of gender identity, as well as from the recognition of surnames. As regards the first one, he contends that linking the recognition of the new first name and the recognition of gender identity infringes on the principle of effectiveness and does not safeguard the rights which the applicant derives from EU law.
Consequently, he opines that Article 21 of the TFEU should be interpreted as precluding Member States from refusing to enter into a civil register the first name acquired in another Member State, or making that entry subject to recognition of the change of gender by a court of the former Member State.
b) Change of gender
When analysing the recognition of the change of gender, AG referees by analogy to the case law on names. In the same vein, he contends that the designation of sex is a constituent element of a person’s identity. Referring to case law of the European Court of Human Rights, AG De la Tour discusses the State’s positive obligation to ensure respect for private and family life, including recognition of name and gender identity. However, he adds that the lack of national legislation in a Member State concerning recognition of declarations of change of gender does not constitute an obstacle in the light of Article 21 TFEU.
The AG only finds refusal justified if other legal bases for obtaining a change of sex exist in that Member State. Nevertheless, he further refers to the judgement of the European Court of Human Rights in X and Y and v. Romania, which demonstrated that the national procedures were incompatible with EU law since it makes the implementation of rights conferred by Article 21 TFEU impossible or excessively difficult. Thus, non-recognition of change of gender acquired in the UK constitutes an unjustified restriction of freedom of movement for the Union citizens concerned.
Comment
In one hundred paragraphs, AG De la Tour made a thorough analysis of the first case reaching the Court of Justice relating, in addition to the recognition of change of the first name, to the recognition of the change of gender of a Union citizen. Although both are regarded by the AG as constituent elements of a person’s identity, it seemed more appropriate for him to analyse the recognition of the new first name and the change of gender separately. The rationale behind this relates to the effects that these changes may bring to third parties, specifically family members of the person concerned. In that regard, the AG considers that the recognition of the first name is less difficult as compared to the recognition of a surname or the change of gender, which modifies not only personal but also family status and the rights correlated with the difference in sex (marriage, parentage, retirement, health, sports competitions, etc.)
Both the non-recognition of the change of first name and of gender infringe free movement rights (Article 21 of the TFEU and Article 45 of the Charter) and fundamental rights (Article 7 of the Charter) of the Union citizens. However, the AG implied that the recognition of the change of gender cannot have full effects, unlike the recognition of the first name. In paragraphs 93 and 94 of his opinion, he opined that the effects of such recognition would be limited to the identification details of the person concerned, which are used in particular for his or her movement within the territory of the EU. No obligation can be imposed on Member States for such recognition if that would entail subsequent recognition in their national law of the same-sex marriage or same-sex parenthood. Should this be interpreted that the collateral effects that the recognition of gender may bring should be dismissed?
The proposed solution of the AG appears quite similar to what has been ruled in Coman (C-673/16) and Pancharevo (C-490/20), which aim to strike a balance between different interests. In the Mirin case, the preliminary reference was confined to the compliance of the refusal of recognition with EU law, without bringing a public policy or any other public interest into the play. Nonetheless, the AG noted that reliance on public policy would not justify that restriction and that assertion seems to be consistent with previous similar rulings of the Court of Justice.
Two issues that may disturb the recognition of gender (and possibly of other components of civil status as well) in the EU are the diversity of the substantive laws of the Member States and fraude à la loi. AG De la Tour addressed these concerns and proposed the application of conditions such as residence or nationality to determine the close links of a Union citizen and the Member State in which such a change took place. It seems to me a superficial and abstract solution. As long as there are different conflict-of-laws rules of Member States with different connecting factors and no harmonisation of EU conflict-of-laws rules on the matters of personal status, where and how would those conditions (nationality or residence) be examined and applied? Moreover, should there be a hierarchical distinction between nationality and residence or between two nationalities?
In summary, it appears that AG De la Tour, in his Opinion aims to pave the way for the automatic recognition of the change of name, with full effect, within the context of mutual trust. However, this stance does not seem to extend to the recognition of the change of gender, which should be limited to the effects, in terms of civil status, of the free movement rights, under Article 21 of the TFEU.
It remains to be seen, of course, whether the Court of Justice will follow the AG’s views.