The CJEU on the Recognition of a Union Citizen’s Change of First Name and Gender Identity
The author of this post is Helga Luku, a PhD researcher at the University of Antwerp.
Five months after Advocate General De La Tour delivered his Opinion (see further here), the Court of Justice finally gave its judgment on the Mirin case on 4 October 2024.
The Cour ruled that Articles 20 and 21(1) of the Treaty on the Functioning of the European Union (TFEU), read in the light of Articles 7 and 45 of the Charter of Fundamental Rights of the European Union (the Charter) must be interpreted as precluding legislation of a Member State that does not permit recognition and entry in the birth certificate of a national of that Member State of a change of first name and gender identity lawfully acquired in another Member State, when exercising the right to free movement and residence, with the consequence that that person is obliged to initiate, before a court, new proceedings for a change of gender identity in the first Member State, which disregard the change that was previously lawfully acquired in that other Member State.
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 a deed poll procedure. This change was reflected in various UK documents, including the applicant’s driver’s licence and passport. Despite a “Gender Recognition Certificate” affirming the applicant’s male identity, Romanian authorities refused to amend the applicant’s birth certificate to reflect those changes, as requested by the applicant.
In the action brought before the Court of First Instance in Bucharest, M.-A. A. sought to have his birth certificate brought into line with his gender identity, as recognised in the UK. He relied on the direct application of EU law, particularly the right to free movement and residence within the EU. Romanian authorities contended 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 exposed the applicant to the risk that the outcome of those proceedings would not match the outcome of the process occurred in the UK.
The Bucharest Court decided to stay the proceedings and essentially asked 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 asked whether Brexit impacted the current case, as the UK proceedings were initiated before Brexit and concluded during the transition period.
The Court’s Assessment
The CJEU began by stating that M.-A.A. enjoys the fundamental status of Union citizenship under Article 20(1) TFEU. In that regard, the Court stressed that Articles 20(2), 21 and 22 of the TFEU attach a set of rights to that status, which are subject to limitations and conditions laid down in the TFEU.
The CJEU clarified that, under current EU law, the regulation of a person’s name and gender identity falls within the competence of Member States. However, Member States must comply with EU law when exercising that competence, particularly the provisions of the TFEU provisions that ensure Union citizen’s right to move and reside freely within the territory of the Member States. According to the CJEU, a Member State’s refusal to recognise the name of a citizen, validly acquired in another Member State, hinders the exercise of the right to move and reside freely in the territories of the Member States, enshrined in Article 21 TFEU. A divergence between two names used for the same person causes confusion and inconveniences in daily actions, both in public and in the private domain, requiring a person to provide evidence of his or her own identity.
In the same way, the CJEU held that such hindrance of free movement rights may also result from the refusal of the authorities to recognise the change of gender identity. The non-recognition of gender identity, according to the CJEU, is liable to cause “serious inconvenience” for that person at administrative, professional and private levels. Both, name and gender define a person’s identity and personal status. Thus, a refusal by the competent civil status authorities of a Member State to recognise and enter in the civil register a change of first name and gender identity lawfully acquired by that national in another Member State is liable to restrict the exercise of the right to move and reside freely within the territory of Member States. Any restriction on the rights provided in Article 21(1) TFEU necessarily infringes Article 45(1) of the Charter and the corresponding right in Article 20(2)(a) TFEU.
Based on the CJEU’s case law, restrictions can only be justified by objective considerations and must be proportionate to a legitimate objective. However, neither the referring court nor the Romanian Government provided any information concerning the objectives pursued by the national legislation that does not allow recognition of the lawful change of first name and gender identity, in another Member State. However, as stated by the CJEU, even if a legitimate objective exists, it must comply with the fundamental rights guaranteed by the Charter.
Further, the CJEU noted that, according to Article 52(3) of the Charter, the rights in Article 7 align with those in Article 8 of the European Convention of Human Rights (ECHR), which requires States to provide a clear and foreseeable procedure for the legal recognition of gender identity which allows for a change of sex and thus of name and digital personal code, on official documents, in a quick, transparent and accessible manner (see ECtHR, 19 January 2021, X and Y v. Romania).
Putting in the EU law context, in paragraph 69 the CJEU held that, in order for national legislation such as that relating to the entry in civil registers of a change of first name and gender identity to be compatible with EU law, it is necessary that the provisions or national procedure allowing such entry to be made, do not render impossible or excessively difficult the implementation of the rights conferred by Article 21 TFEU.
In conclusion, the CJEU ruled that Articles 20 and 21(1) TFEU, read in the light of Articles 7 and 45 of the Charter must be interpreted as precluding legislation of a Member State that does not permit recognition and entry in the birth certificate of a national of that Member State of a change of first name and gender identity lawfully acquired in another member Sate, when exercising the rights to free movement and residence, with the consequence that that person is obliged to initiate, before a court, new proceedings for a change of gender identity in the first Member State, which disregard the change that was previously lawfully acquired in that other Member State.
The fact that the request for recognition was made in that first Member State on a date on which the withdrawal from the European Union of other Member States had already taken effect was deemed irrelevant by the CJEU.
Comment
In a similar line of reasoning as in the V.M.A. judgment, the CJEU once again interpreted Articles 20 and 21 TFEU in conjunction with Articles 7 and 45 of the Charter. Not straying far from its settled case law in recognition of names in the EU, the CJEU applied the “serious inconvenience” test to the applicant. The refusal by the Romanian authorities to recognise the change of name and gender of the applicant was deemed by the CJEU as causing confusion and inconveniences in daily actions, both in the public and private domain, requiring the concerned person to provide evidence of his/her identity. According to the CJEU, both the non-recognition of name and gender count as an obstacle to the right to free movement within the territory of the Member States and national legislation was incompatible with EU law.
An inevitable question that arises with regard to the judgement is whether it is, mutatis mutandis, similar to previous case law, limited to recognition for free movement purposes or whether the CJEU is aiming to pave the way toward recognition for broader legal purposes in all Member States, hinting at rights guaranteed by the Charter and ECHR. The former interpretation appears to be more suitable. This argument rests on three key points.
First, the wording of the CJEU’s holding explicitly refers to the interpretation of the provisions of Union citizenship and free movement, i.e. Articles 20 and 21(1) TFEU in the light of Articles 7 and 45 of the Charter. Thus, the non-recognition of name and gender identity changes is not regarded as an infringement of fundamental rights under the Charter’s provisions. Instead, it is interpreted as an impediment to the free movement rights of citizens, as evident in the CJEU’s assertion “when exercising the right to free movement and residence”.
Second, the CJEU interpreted the Charter’s rights after having established that free movement rights had been infringed. The absence of a concrete objective justification by the national authorities did not preclude the CJEU from determining that, even if such a justification had been presented, it would still fail to comply with the provisions of the Charter, particularly the right to respect for private life. In that instance, it refers to the case law of the ECtHR, which requires States to provide for “a clear and foreseeable procedure for legal recognition of gender identity, name and digital personal code on official documents”. In framing the ECtHR’s interpretation within the context of EU law, the CJEU maintained that the provisions and national procedure allowing a request for such entry to be made, do not render impossible or excessively difficult the implementation of the rights conferred by Article 21 TFEU. However, different from the ECtHR’s ruling in X and Y v. Romania, which does not involve any limitation concerning such recognition, the CJEU confined it to Union citizens who had made use of their free movement rights.
Although it is not explicitly mentioned in the judgment, it seems that the CJEU is attentive to Article 51 of the Charter, which defines the Charter’s field of application. It specifies that provisions of the Charter are intended for the institutions, bodies, offices, and agencies of the Union, with due regard to the principle of subsidiarity and to the Member States solely when they are implementing Union law. According to the Explanation of the Charter on Article 51, it follows unambiguously from the case law of the CJEU that the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law and that the Charter may not have the effect of extending the competences which the Treaties confer on the Union.
Given that the rules on changing name and gender fall within the competence of Member States, the CJEU is not willing to detract from that competence, as evident in paragraph 53. Nevertheless, national laws must comply with EU law, in particular, the provisions of the TFEU on the freedom conferred on all Union citizens to move and reside within the territory of Member States, by recognising, for that purpose the civil status of persons that has been validly established in another Member State. It is obvious that the Member States are obliged to recognise the change of name and gender identity to allow free movement of the Union citizens. However, the recognition of a Union citizen’s name and gender identity change for other purposes – such as marriage, parenthood establishment, social security rights, health care, and participation in sports – appears to remain within the competence of individual Member States.
Thirdly, the CJEU’s ruling largely aligned with the Opinion of the Advocate General (AG) De La Tour, yet it overlooked some issues identified by the latter. Firstly, the AG analysed the recognition of first name and gender identity separately. He proposed an automatic recognition of the change of first name, with full effects, within the context of mutual trust and a limited recognition of the change of gender for free movement rights purposes, under Article 21 TFEU. The reason behind this distinguishment made by the AG was related to the effects that these changes may bring to third parties, specifically family members of the persons concerned. Therefore the AG opined that recognition of the first name is less difficult than the recognition of a change of gender, which modifies not only personal but also the family status and the rights related to the difference in sex.
Secondly, the AG in his Opinion raised two significant concerns regarding the recognition of gender in the EU, i.e. fraude à la loi and the diversity of substantive laws of the Member State applicable to the change of gender. He proposed that these concerns can be tackled by applying 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. Nevertheless, the CJEU’s silence on these issues could indicate that it either found the AG’s proposed solution not convincing or perceived that there were no significant reasons to address these issues.
In conclusion, the CJEU adopts a cautious approach whenever it rules on matters regarding the recognition of Union citizen’s civil status. The present judgment reaffirms the CJEU’s position within the EU law confines, holding that Member States are obliged to recognise the civil status of Union citizens for free movement purposes only.