Introduction
On 13 March 2025, the First Chamber of the EU Courtroom of Justice (CJEU) delivered its judgment in Deldits (C-247/23). The dispute involved the refusal of Hungarian authorities to replace the gender marker (from F-emale to M-ale) of a transgender refugee primarily based on the discovering that the applicant had not undergone gender reassignment surgical procedure. Apparently, the case was not constructed on any elementary rights declare however solely on compliance with the precept of accuracy established in Article 5(1)(d) of the Normal Knowledge Safety Regulation (GDPR).
The Courtroom dominated out this observe, thus affirming that surgical therapy is just not a related situation to learn from a proper stemming from EU legislation. This determination is momentous for a number of causes. In a second when trans* rights are beneath systemic assaults globally, the CJEU is increasing the safety of these rights beneath EU legislation. This occurs not solely through the normal non-discrimination legislation but in addition by different authorized devices, such because the GDPR. Extra importantly, this case marks a turning level for the CJEU’s departure from its medicalised understanding of transgender identification. Notably, this piece will concentrate on the latter improvement.
A. Factual Background and Preliminary Questions
The dispute involved VP, an Iranian nationwide who obtained refugee standing in Hungary, the place they resided since 2014. In help of their utility to acquire refugee standing, VP relied on their transgender identification and thus produced medical certificates issued by specialists in psychiatry and gynaecology. All these paperwork point out that whereas VP was assigned feminine at delivery, their gender identification was male. Nonetheless, VP was registered as a feminine within the asylum register managed by the Hungarian asylum authority. In 2022, VP submitted a request to that authority to rectify their gender marker (from F-emale to M-ale). Nonetheless, the Hungarian authorities rejected that request primarily based on the discovering that VP didn’t bear gender reassignment surgical procedure.
Subsequently, VP lodged an motion for annulment of that call earlier than the Budapest Excessive Courtroom, which referred three preliminary inquiries to the CJEU:
– whether or not the appropriate to rectification in Article 16 GDPR, learn in gentle of the precept of accuracy established in Article 5(1)(d), required nationwide authorities to rectify the info relating to the gender identification of a person;
– whether or not there’s a requirement to offer medical proof of the gender transition and, specifically, proof of surgical therapy to rectify the info contained within the asylum register.
B. Judgment of the Courtroom
Within the questions referred to the CJEU, rectifying one’s gender marker is framed as a technical subject of knowledge accuracy. No elementary rights provision is talked about – not even in a complementary method. Nonetheless, following the Opinion of the Advocate Normal squarely, the Courtroom highlighted the broader elementary rights dimension of knowledge safety. Specifically, the Courtroom confused that the appropriate to acquire rectification of incorrect private information beneath Article 16 GDPR offers particular expression to the elemental proper contained in Article 8(2) CFREU (para. 24). Accordingly, the Courtroom emphasised that the target pursued by the GDPR is to make sure ‘a excessive stage of safety of the elemental rights and freedoms of pure individuals’, notably the appropriate to privateness with respect to the processing of private information expressed in Article 8(1) of the Constitution and Article 16(1) TFEU (para. 27). Nonetheless, the Courtroom didn’t point out the appropriate to respect for personal life contained in Article 7 CFREU, which encompasses the appropriate of trans* individuals to respect for and recognition of their gender identification (see Mirin, para. 64). Whereas this provision got here again within the evaluation of the third query, the Courtroom failed to spotlight (not less than, on this half) the extra private and intimate elements of the appropriate to information rectification.
On the primary query
The Courtroom then began its evaluation of the primary query by stating that the appropriate to rectification contained in Article 16 GDPR have to be learn in gentle of the precept of accuracy established in Article 5(1)(d) (para. 25). On this context, the Courtroom identified that the evaluation of whether or not private information is correct and full have to be finished contemplating the aim for which these information had been collected (para. 26). If the aim is the identification of the particular person involved, because it was within the case at hand, the info collected ought to discuss with their lived gender identification, and to not the intercourse assigned at delivery (para. 32).
Moreover, whereas the appropriate to rectification can, in precept, be restricted, this may be finished solely via a legislative measure and for causes of common public curiosity beneath Article 23 GDPR. Within the current case, the restriction didn’t stem from any legislative measure, however from the only real discovering that VP had not supplied proof of their gender identification (para. 36). Nonetheless, the Courtroom highlighted that the appropriate to rectification can’t be restricted by the only real reality {that a} Member State doesn’t present for authorized gender recognition (LGR) procedures inside its home authorized system. In opposition to this backdrop, the Courtroom recalled its earlier case legislation on trans* rights. Whereas the Member States retain competence to manage LGR procedures, they can’t totally refuse to recognise a person’s gender transition if this prevents them from fulfilling a situation that have to be met to get pleasure from a proper protected by EU legislation (para. 37). On this case, the non-recognition of VP’s gender identification prevented them from being entitled to the appropriate to information rectification beneath Article 16 of the GDPR.
On the second and third questions
On the second and third questions, the Courtroom repeated that the appropriate to rectification may very well be restricted by, as an example, requiring proof of an undertaken gender transition. But, such a restriction have to be adopted by legislative measures. As well as, it should respect the essence of the elemental rights and freedoms and be needed and proportionate (paras. 41-42).
Nonetheless, the refusal of Hungarian authorities was primarily based on the only real discovering that the applicant didn’t bear gender reassignment surgical procedure. This quantities to an administrative observe developed by Hungarian authorities, which doesn’t fulfil the requirement of a legislative measure (para. 44).
Furthermore, the Courtroom discovered that such observe is liable to undermine the appropriate to the integrity of the particular person and the appropriate to respect for personal life, protected by Article 3 and Article 7 CFREU respectively (para. 45). That is additionally evident from the case legislation of the European Courtroom of Human Rights (paras. 46-48), which had already dominated that the authorized recognition of the gender identification of a transgender particular person ‘can’t be made conditional on the completion of surgical therapy’ (see ECtHR, case X and Y v Romania). Lastly, such administrative observe is just not needed or proportionate, as a medical certificates constitutes adequate proof (para. 49).
C. The CJEU and Trans* Rights: Lastly Past Medicalisation?
The case legislation of the CJEU has performed a vital function within the development of the rights of transgender people beneath EU legislation (see Dunne). Since its landmark ruling in P v S (C-13/94), the Courtroom recognised discrimination primarily based on gender reassignment as a type of intercourse discrimination. Furthermore, subsequent judgements in instances KB (C-117/01) and Richards (C-423/04) additional strengthened the precept established in P v S, confirming that the complete spectrum of EU gender equality laws applies to discrimination primarily based on gender reassignment.
Nonetheless, this case legislation entails a big limitation: the medicalised understanding of transgender identification. Specifically, ‘gender reassignment’ consists of solely these transgender people who’ve undergone surgical therapy. This strategy replicates a binary understanding of gender and excludes from the scope of EU non-discrimination legislation a big proportion of the trans* inhabitants, together with non-binary people.
The gradual shift of Mirin, Mousse and Deldits
Whereas the ‘medicalised strategy’ of this case legislation has been extremely criticised within the literature (see Bell), the CJEU has lately dominated in a set of instances that additional enhanced the safety of trans* individuals beneath EU legislation. First, in Mirin (C-4/23), the CJEU established a mutual recognition obligation for gender transition. The Member States should recognise the gender transition legally accomplished in one other Member State – and thus rectify identification paperwork and civil standing entries with the acquired gender marker of the particular person involved. Second, in Mousse (C-394/23), the CJEU held that the necessary selection between ‘Madame’ and ‘Monsieur’ when buying a web-based practice ticket is incompatible with the precept of knowledge minimisation beneath Article 5(1)(c) GDPR. Thus, the CJEU held that the observe of amassing information associated to an individual’s gender is just not needed and should result in discrimination primarily based on gender identification. As famous by Bruno, this case additional confirms the aptitude of the GDPR to broaden the authorized safety of trans* rights beneath EU legislation.
Considerably, a mixed studying of those three instances (Mirin, Mousse and Deldits) means that the CJEU is abandoning its ‘medicalised strategy’. On the one hand, the Courtroom modified its terminology. In earlier case legislation (P v S, KB, Richards and MB), the CJEU completely referred to ‘gender reassignment (surgical procedure)’. In contrast, within the latest trilogy of instances, the Courtroom solely referred to the ‘(gender) identification’ of the candidates. This vocabulary mirrors a extra inclusive and nuanced understanding of the trans* inhabitants, which is liable to embody non-binary people and trans* individuals who haven’t undertaken surgical procedure. Then again, in each Mirin and Mousse, the Courtroom ignored whether or not the candidates had undergone reassignment surgical procedure. Thus, one might suggest that surgical procedure was not a related situation to learn from a proper stemming from Union legislation.
In Deldits, which constitutes the final brick of this trilogy, the CJEU makes the shift in its case legislation evident. The ruling straight addressed the query of whether or not gender reassignment surgical procedure is a related situation for the enjoyment of a proper derived from EU legislation. The Courtroom unequivocally held that it isn’t: a medical certificates confirming the gender transition of a person constitutes adequate proof.
Moreover, this conclusion was grounded in a strong elementary rights narrative. The Courtroom persistently referred to the Constitution, particularly its Article 3 (proper to the integrity of the particular person) and Article 7 (proper to respect for personal life). Apparently, the Courtroom did so regardless of the entire absence of those Constitution provisions within the preliminary questions of the referring Courtroom. Furthermore, the CJEU expressly relied on Article 8 ECHR and the associated case legislation of the ECtHR, which persistently held that the popularity of the gender transition of a transgender particular person ‘can’t be made conditional on the completion of surgical therapy not desired by that particular person’ (ECtHR, Case X and Y v Romania).
Conclusions
The latest judgments in Mirin, Mousse, and Deldits mirror a twofold growth of trans* rights beneath EU legislation. From one perspective, this growth considerations the authorized instruments. Historically, the rights of transgender people have been addressed primarily by EU non-discrimination legislation. The latest case legislation demonstrates that EU legislation can be able to conferring rights to trans* individuals horizontally by authorized devices that aren’t explicitly designed to sort out problems with gender identification. In Mirin, as an example, the mutual recognition obligation was established through EU citizenship and free motion rights. Likewise, the rulings in Mirin and Deldits relied on two ideas established within the GDPR.
Deldits, from one other perspective, appears to substantiate the evolution of the CJEU’s case legislation in the direction of a complete understanding of transgender identification past medicalisation. In Mirin and Mousse, this improvement remained solely implicit or potential, because the Courtroom didn’t straight handle surgical therapy. Considerably, Deldits marks a turning level: the irrelevance of gender reassignment surgical procedure is just not solely mentioned explicitly but in addition firmly grounded in strong elementary rights reasoning. This improvement will clearly impression the Courtroom’s case legislation on EU non-discrimination legislation, which has been restricted to gender reassignment. In any other case, how can the Courtroom clarify that surgical therapy is crucial for accessing EU non-discrimination legislation protections, but it isn’t deemed needed for the rights granted beneath GDPR?
Alessandro Marcia (He/Him) is a Ph.D. Researcher and Lecturer of EU legislation at Maastricht College. His analysis focuses on LGBTIQA+ rights’ safety beneath EU legislation. Alessandro holds a Grasp’s Diploma in Regulation from the College of Bologna and an LL.M. in EU legislation from Université libre de Bruxelles.
