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Part II: Recognising Changes in Gender Identity Under EU Law: The Impact of Mirin and Deldits for Legal Gender Recognition Across Borders


Credits: Daniel Lobo, Flickr.com

By: Dr. Chiara Raucea

Mirin: EU Law Obliges Member States to Recognise a Change of Gender Identity Lawfully Acquired in Another Member State

In Part I, the principle of conferral places limits on the boundaries of EU law in sensitive cases where diversity in national legal orders leads to undue interference with fundamental rights. EU law will, however, apply when a cross-border element is involved. For example, when Union citizens risk losing acquired rights after moving to another Member State. In Part II, this legal strategy, which links fundamental rights protection to EU free movement, is examined to determine whether it can also be used to overcome Member States’ disagreement and advance the recognition of transgender individuals’ rights and identities within the EU, and under what conditions this might be possible.

Legal Gender Recognition (LGR) can be defined as the “the legal recognition of a person’s gender identity, including name, sex/gender marker and other gender-related information, which may be reflected in surnames, social security numbers/personal identification numbers, titles etc., in public registries, records, identification documents (identity cards, passports, driving licences) and other similar documents (educational certificates etc.).”

The EU does not have the competence to set supranational harmonised standards among its Member States regarding LGR. Currently, the procedures for individuals to change their names and gender markers in official registers and documents to better match their gender identity vary widely across EU countries. Some Member States have established clear procedures for LGR in their domestic law, while others lack clear rules. Additionally, some EU countries require applicants to undergo judicial procedures, making the outcome more unpredictable and dependent on judicial discretion. The medical, civil, and administrative requirements for individuals to change their legal gender also differ substantially across EU Member States. These requirements range from self-declaration by the applicant to the imposition of medical procedures or the need for a diagnosis and supervision by a medical body. This legal fragmentation regarding LGR in the EU creates practical and legal obstacles for trans persons who wish to exercise their right to free movement, but run the risk of facing an inconsistent recognition of their gender identity across EU Member States. Whether and how EU law can provide protection to transgender people in these situations was clarified by the CJEU in October 2024, in Case C‑4/23, Mirin.

Mirin is a fictitious name since, starting from January 2023, the CJEU uses fictional names to anonymise all cases involving proceedings between natural persons. In this case, the applicant holds dual nationality: he is a Romanian and British citizen who was born female in Romania in 1992. He moved to the UK with his family at the age of 14 and obtained British nationality in 2016. In 2017, he legally changed his name and gender from female to male in the UK. Later, in 2020, he obtained a Gender Recognition Certificate, which confirms his male gender identity and affects other British official documents.

In May 2021, the applicant requested that his birth certificate in Romania be updated to reflect his male gender and include the new personal details (including name changes) based on UK documents. The Romanian authorities responsible for the Civil Status Service refused the request on the grounds that Romanian national law establishes that changes regarding a person’s gender identity may be recorded in the person’s birth certificate only after a final judicial decision by a Romanian court. The applicant sought judicial intervention from a Bucharest court to enforce these changes, arguing that EU law (in particular, the right to EU free movement) should apply, enabling him to have documents in his home country that match the change in his name and gender identity legally acquired in another Member State. The Romanian authorities contended that the applicant should start a new judicial procedure for obtaining the LGR in Romania. However, this may lead to an outcome that differs from the recognition already obtained by the applicant with the UK LGR procedure. For this reason, the Bucharest court deciding on the case asked the CJEU to clarify the applicable provisions of EU law.

The EU rules relevant to decide on the case are the EU Treaty provisions concerning Union citizenship and EU free movement (Art 20 and 21 TFEU), read together with treaty provisions regarding human dignity, equality before the law, and non-discrimination (Art 2 TEU and Art 18 TFEU), and the right to respect for private and family life protected by Art 7 CFR EU. More specifically, the referring court seeks to clarify whether Romanian national rules align with EU citizenship rights, particularly considering the UK's departure from the EU, and asks the CJEU to clarify whether a Member State is under the obligation to recognise the outcome of a LGR procedure lawfully completed in a country that was an EU member state when the LGR procedure started (and the procedure was completed before the end of the transition period provided in the Withdrawal Agreement).

The case is novel because it is the first time the CJEU has ruled on how different national procedures for LGR might create obstacles for trans persons to enjoy free movement rights. The CJEU’s Grand Chamber ruled that an EU Member State must recognise the change of gender identity already lawfully acquired in another Member State.

Preliminarily, the CJEU assessed whether the questions referred were admissible and if the UK's departure from the EU affected the applicability of EU rules to the case. The Court found the case admissible, noting that the applicant's name change occurred while the UK was still an EU Member, and the change of gender identity happened during the transition period set out in the Withdrawal Agreement. Therefore, the recognition of these changes by another EU Member State falls under EU law. Specifically, this issue pertains to the possibility of a Union citizen to effectively exercise their Union citizenship’s right to freely move and reside in the EU (see Mirin, paras 36-46).

The CJEU acknowledges that rules on changing a first name and gender identity fall within the competence of Member States and that, at present, EU law does not regulate LGR. However, the CJEU reaffirms that Member States must comply with EU law also when they exercise their national competences. At the core of Union Citizenship is the right of Union citizens to freely move and reside within the Union. To remove obstacles to the enjoyment of such rights, Member States must recognise the civil status of individuals who exercise free movement as it has been established in another EU Member State in accordance with that state’s laws (Mirin, para 53).

The CJEU's reasoning implies that EU Member States must mutually recognise decisions concerning individuals’ civil status, regardless of a shared consensus or comparable domestic rules on changes of name and gender identity. This obligation to mutually recognise civil status changes exists even when Member States have different procedures and standards, as seen with LGR procedures. This obligation is grounded in the Member States’ commitment to ensure that Union citizens can effectively enjoy their free movement rights. Without mutual recognition, Union citizens who have legally changed their name and gender in one Member State risk having to use different names and constantly prove their identity and the validity of their documents when moving across EU borders (Mirin, para 56). The CJEU’s reasoning also implies that, under current EU law, transgender Union citizens in purely internal situations (without a cross-border element) cannot invoke EU law to access LGR procedures. However, EU law grants transgender Union citizens who have completed a LGR procedure in a Member State (where they are nationals or have been residing lawfully) the right to travel and relocate to any other EU Member State without the outcome of their completed LGR procedure being questioned or disregarded, even in Member States that do not offer similar LGR opportunities.

The argument developed by the CJEU interestingly links the exercise of Union citizens’ free movement with fundamental rights. This link is developed in a twofold move. First, the CJEU refers to two different EU law sources enshrining the Union citizens’ right to freely move and reside in the territory of the Union (see Mirin, para 58). One, more obvious source, is the TFEU: Art 20 and Art 21 TFEU are, in fact, consistently mentioned in the CJEU’s case law on Union citizenship and free movement rights. The other source is the CFR EU, where Art 45 (1) lists the freedom of movement and residence in the EU as Union citizens’ fundamental rights. The CJEU indicated that the free movement rights enshrined in the CFR correspond to the rights set out in Artt 20 and 21 TFEU. But, the reference to the CFR allows the Court to assess the potential interferences with free movement rights by using a test traditionally used to check the legitimacy and proportionality of interferences with fundamental rights. This test requires countries that adopt measures potentially restricting fundamental rights to justify the legitimate aim pursued by those measures. In Mirin, the Court stressed that the Romanian Government did not provide information regarding the objectives pursued by its national legislation, which disregards LGR lawfully obtained in another Member State and requests the applicant to start new procedures for LGR before Romanian courts (Mirin, para 61). Moreover, when assessing whether restrictions based on national law are compatible with fundamental rights, the CJEU requires Member States to demonstrate not only that such restrictions pursue a legitimate aim, but also that they are necessary and respect other fundamental rights, particularly the right to private and family life, as enshrined in Article 7 CFR (Mirin, para 62).

The second step the CJEU takes in developing its legal reasoning (and in linking the exercise of Union citizens’ free movement rights with fundamental rights) concerns the clarification of what constitutes a minimum level of protection for the right to private and family life within EU Member States. As noted in the introduction, the EU lacks competence to set fundamental rights standards in areas such as family life and gender identity. However, the CJEU has convincingly demonstrated that, while EU law cannot create new standards in these domains, it must nonetheless be used to enforce the standards established by the ECtHR. This obligation stems from Article 52(3) EU CFR, which requires that the rights guaranteed in Article 7 CFR be interpreted as having “the same meaning and the same scope as those guaranteed in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (the ECHR)” (Mirin, para 63).

The legal reasoning developed by the CJEU to incorporate fundamental rights standards from the ECtHR’s case law on LGR into EU law has three significant, interrelated effects. First, Article 7 CFR must be interpreted to include the right of trans persons to have their sexual identity respected. This encompasses their rights to physical and moral integrity and personal development. This interpretation aligns with the ECtHR’s established view that sexual and gender identity are core elements of private life protected under Article 8 ECHR (Mirin, para. 64). Second, Article 7 CFR imposes a positive obligation on Member States to establish effective and accessible procedures for LGR. This ensures that transgender individuals can meaningfully exercise their right to sexual identity (Mirin, para. 65). Third, in January 2021, the ECtHR had already established that Romania’s legislation on gender identity changes was unclear and unforeseeable and, as such, incompatible with Article 8 ECHR (Mirin, para. 67, referring to X and Y v Romania). As a result, Union citizens who have already completed LGR in another Member State risk facing excessive discretion and inconsistent outcomes if required to undergo a new judicial procedure in Romania.

In Part III, we will further examine the extent to which EU law (particularly Article 7 of the CFR) can be invoked to protect the right of trans persons to have their gender identity respected, even in cases where no cross-border element or exercise of EU free movement is involved.

 

Bio:

Dr. Chiara Raucea works as an Assistant Professor of EU law at the Department of Public Law and Governance at Tilburg Law School (the Netherlands). At Tilburg University, she teaches an LL.M. course on Migration and the Rule of Law and a bachelor's course on European Union Law. Her research is multidisciplinary and combines interests in doctrinal EU law with legal and political philosophy. In her work, she explores questions about the relationship between legal status and access to rights, as well as the rights of migrants in host communities. Dr. Chiara Raucea is currently working on a project enquiring about the political dimension of the right to private life. She explores the argument that the right to private life may offer a solid ground to claim access to naturalisation, permanent residence, and regularisation of migration statuses.

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