By: Dr. Chiara Raucea
Beyond Mirin: Has Deldits Redefined the Limits of EU Competence in Legal Gender Recognition?"
Following Mirin - discussed in Part II, trans European citizens, who have completed a LGR procedure in one EU Member State and have obtained changes to their gender identity and name, can invoke EU law to have these changes recognised in all other Member States, regardless of whether those states offer a (comparable) LGR procedure. A refusal to recognise such changes would constitute an obstacle to the exercise of EU free movement rights and an undue interference with transgender individuals’ right to respect for private life.
The absence of harmonised LGR procedures across the EU does not justify requiring trans Union citizens (whose gender identity and name have already been legally recognised in one Member State) to initiate a new domestic procedure elsewhere. This conclusion marks a significant step forward in removing practical barriers that could otherwise lead to inconsistencies in travel and identity documents for trans citizens who have exercised, or wish to exercise, their right to free movement.
Another key aspect of Mirin is the CJEU’s attention to the ECtHR’s case law on LGR. The Court clearly held that EU law must be interpreted considering that the right to respect for private life under Article 7 CFR includes the right of trans persons to obtain legal recognition of their identity. This also entails a positive obligation on states to establish clear and accessible legal procedures to realise that right. However, questions remain about the implications of Mirin for protecting the rights of transgender persons in situations that lack a cross-border element. Article 7 CFR can only be invoked in cases falling within the scope of EU law. Currently, the most straightforward way to demonstrate such a connection is through the exercise of the right to move and reside freely within the Union. Nevertheless, a recent CJEU’s ruling interpreted the protective scope of EU law as including cases where a traditional cross-border element is absent, but a sufficient link to EU law can still be established.
In Case C‑247/23 Deldits, decided on 13 March 2025, the connection to EU law was established through the application of the General Data Protection Regulation (GDPR). (GDPR). This regulation sets out the EU’s standards for data protection, outlining how both public authorities and private entities must manage personal data. Notably, in Deldits, the applicant’s request to amend the gender entry in a national registry was not presented as a potential infringement of fundamental rights. Instead, it was framed as a breach of the right to rectify inaccurate personal data, which is a right protected under Article 16 of the GDPR.
The case involved a transgender man (VP), who was granted refugee status in Hungary in 2014 after authorities determined VP faced a risk of persecution in Iran due to their gender identity. This decision was based on medical certificates from psychiatric and gynaecological specialists, which confirmed that although VP was assigned female at birth, their gender identity is male. Despite being granted asylum on this basis, VP was still registered as female in the Hungarian asylum register, which records personal details of refugees. In 2022, VP requested that their name and gender be corrected in the asylum register, arguing that they had a right to rectification under Article 16 of the GDPR. The Hungarian authorities rejected the request on two grounds. First, the VP had not provided proof of having undergone gender reassignment surgery; second, the medical certificates submitted during the asylum process were not considered sufficient to justify a change of gender in official records.
Like Mirin, the Deldits case concerns the conditions set by an EU Member State for changing gender identity data in national registers. However, unlike Mirin, Deldits does not involve a cross-border element. The applicant had not completed an LGR procedure in another Member State and therefore could not argue that the refusal to update their gender identity interfered with their EU free movement rights.
In the Opinion of the Advocate General on Deldits, it is mentioned that VP, besides being granted refugee status in Hungary, had also acquired Hungarian citizenship (see para 18). Despite this, the ruling does not address the implications of the VP’s Union citizenship or the potential impact of inaccurate gender data, including in their identity documents, on the exercise of the EU right to move and reside freely within the Union. This omission is due to the limited scope of the preliminary ruling procedures: the CJEU can only interpret EU law within the boundaries of the case referred by the national court. And in Deldits, the referring court was specifically concerned with the data recorded in the asylum register. It asked the CJEU to clarify whether, under EU law, VP had a right to rectification of data concerning their gender identity and what kind of evidence was required to support such a request (See Deldits, para 21). The CJEU held that interpreting the right to rectification of inaccurate data under Article 16 GDPR was essential to determine whether, under EU law, the applicant had the right to have changes in gender identity recorded in the national asylum register. This connection to the GDPR was, therefore, sufficient to bring the case within the scope of EU law.
About the right to rectification of a person’s gender identity in official documents, the Court developed its argument in three steps. First, it confirmed that data concerning gender identity is personal data and that national authorities recording such data for the purpose of identifying individuals are bound by the rules set by the GDPR (Deldits, para 30). Second, given that the purpose of processing such data is identification, gender data are to be considered accurate when they reflect a person’s “lived gender identity”, and not to the identity assigned to them at birth (Deldits, para 32). Third, when data recorded in a national register is inaccurate since they do not reflect a person’s lived gender identity, individuals have a right to rectify data on their gender identity. And the individual right to rectification cannot be denied by a Member State by using, as justification, the argument that they lack a domestic procedure for LGR (Deldits, para 37).
Although the reference to a person’s lived gender identity is central to the Court’s legal reasoning, in Deldits, the decisive factor for the CJEU in finding VP’s gender data inaccurate was Hungary’s recognition of VP as a transgender person during the refugee status procedure (see Deldits, para. 33). The inaccuracy generating VP’s right to rectification stemmed from the inconsistency between VP’s identification in the refugee process and the data recorded in the asylum register. However, it remains unclear whether this reasoning may extend to cases where an applicant’s self-identified gender differs from the data in national registers, but no legal procedure or official documentation supports the applicant’s claim. It is also unclear whether a right to rectification of inaccurate data may also be invoked by an applicant who has completed a LGR procedure in a country which is not an EU Member State. In such instances, the argument for rectifying the data as inaccurate is less certain.
Regarding the conditions to exercise the EU right to rectification of inaccurate data, the CJEU was asked to clarify two key issues. First, what kind of evidence applicants must provide to support a request for rectifying inaccurate data related to their gender identity. Second, whether a national law that makes the right to rectification conditional on undergoing gender reassignment surgery is compatible with EU law. To address these two questions, the CJEU followed a line of reasoning similar to that in Mirin, focusing on whether domestic legal requirements for rectifying gender identity data infringed upon fundamental rights, particularly the right to private life under Article 7 EU CFR. The Court held that under Article 23 GDPR, Member States may restrict the right to rectification only to pursue important objectives of general public interest explicitly recognised in the GDPR. Crucially, such restrictions must be established by law, not through administrative practices. Therefore, the Hungarian authorities’ refusal to register changes in gender identity for applicants who had not undergone gender reassignment surgery was found to be incompatible with EU law because this refusal was based on an administrative practice rather than a clear legal provision (see Deldits, paras. 43–44). The Court further emphasised that even when Member States legislate to restrict the right to rectification, they must always respect “the essence of fundamental rights” as enshrined in the CFR. Echoing its approach in Mirin, the CJEU reaffirmed that the minimum standard of protection for the right to private life in matters of gender identity must align with the ECtHR’s case law on Article 8 of the ECHR. Drawing on this case law, including X and Y v Romania (previously cited in Mirin, paras 64-67), the CJEU addressed the legal gap resulting from the absence of harmonised EU rules on LGR procedures. The Court clarified that although EU Member States retain the competence to impose restrictions (provided these comply with the GDPR), these restrictions must not disproportionately interfere with the right to physical integrity and to the development of one’s identity, which are both aspects protected under Article 7 CFR. Specifically, the CJEU ruled that Member States cannot, under any circumstances, require individuals to undergo gender reassignment surgery as a prerequisite for correcting inaccurate data related to gender identity. In the case at hand, the medical certificates submitted by VP during the asylum procedure were deemed sufficient to establish their transgender identity and, consequently, the inaccuracy of registering them as female in the asylum register.
Conclusions: LGR in the EU, what will come next?
Currently, EU Member States remain divided on whether trans persons should have access to LGR procedures, and under what conditions. The EU has limited competence that does not allow it to regulate matters of civil status directly. Traditionally, the EU’s ability to address sensitive issues involving fundamental rights and to overcome differences created by divergent national legislations often marked by conflicting national values depended on whether such issues could be framed as obstacles to the exercise of EU market freedoms. However, in recent years, EU law has broadened its protective scope. It now also addresses situations where differing national laws may hinder Union citizens from fully exercising their right to move and reside freely within the EU.
In Mirin, the strategy of linking fundamental rights protection to the exercise of free movement rights proved effective. The CJEU ruled that Member States must recognise the outcome of a LGR procedure lawfully completed in another Member State. In Deldits, the Court went a step further. It ruled that EU law could be invoked to request changes related to gender identity even in the absence of a cross-border element. This was possible because the GDPR grants individuals in the EU the right to rectify inaccurate personal data. As a result, individuals may now rely on EU law to challenge entries in national registers (and, potentially, also in identity and travel documents) when those entries do not reflect their “lived gender identity”. However, important questions remain. It is still unclear what conditions Member States may impose on applicants to prove the inaccuracy of gender-related data. Additionally, it remains to be seen how the CJEU and the ECtHR will guide national courts in interpreting the concept of "lived gender identity".
One of the most significant aspects of the two recent rulings discussed in this blog post is the central role that the CJEU assigns to the protection of fundamental rights as interpreted by the ECtHR. This alignment between the jurisprudence of the two European Courts brings several important benefits. First, by drawing on ECtHR’s case law, the CJEU can establish minimum standards for fundamental rights protection, even in areas where Member States hold deeply divergent views. A clear example is the Deldits ruling, where the CJEU prohibited Member States from requiring gender reassignment surgery as a condition for rectifying gender identity data. Second, the CJEU has recently adopted a test to assess whether national legislation creates obstacles to rights derived from EU law, which closely mirrors the one used by the ECtHR to determine whether a violation of rights under the ECHR has occurred. As a result, the CJEU is now applying a more rigorous review of Member States’ justifications for national laws or administrative practices that may interfere with individuals’ fundamental rights.
In the near future, the EU is unlikely to achieve harmonisation of LGR procedures across Member States through legislative means, due to its limited competences in this area. However, recent rulings demonstrate that EU law can still offer effective legal avenues for transgender individuals to challenge national laws and practices that resist alignment with the case law of the ECtHR. The right of trans persons to have their gender identity recognised and protected as a fundamental aspect of private life has become a key interpretive lens for understanding other rights derived from EU law. These EU rights include not only Union citizens’ right to move and reside freely within the EU, but also, for those individuals who cannot or choose not to move to another Member State, the right to have their personal data accurately recorded by public authorities.
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.