E.U. nations must recognize legal gender changes across bloc, top court rules

LONDON — The European Union's top court ruled Friday that member states must recognize legal changes to gender identity processed elsewhere within the E.U., in a case with far-reaching implications for transgender people across Europe.

The European Court of Justice sided with Arian Mirzarafie-Ahi, a transgender man who sued his home country of Romania for refusing to accept the name and gender identity changes he initiated in Britain when it was still a member of the E.U.

The court agreed that Romania violated his rights to citizenship and free movement by refusing to update his Romanian identity documents.

An E.U. country that does not allow for a change of name and gender identity legally acquired in another member state is "contrary to European Union law" and is hindering the "exercise of the right of free movement and residence," the court said in a news release on its ruling, adding that the fact Britain is no longer part of the E.U. does not affect the application of the bloc's law.

"Gender, like a first name, is a fundamental element of personal identity. A divergence between identities resulting from such a refusal of recognition creates difficulties for a person in proving his or her identity in daily life as well as serious professional, administrative and private inconvenience," it said.

Mirzarafie-Ahi's legal team hopes the case will open the door for other transgender people to travel freely and work or study in E.U. member states. Accept, an LGBTQ rights advocacy group in Romania that helped with his case, said there are "tens of thousands" of people in similar situations.

The ease of obtaining a gender recognition certificate varies widely within the E.U. Some countries — including Belgium, Ireland and Spain — permit people to self-declare. Other countries — such as Cyprus, Latvia and Slovakia — require sterilization or surgical interventions. Bulgaria and Hungary, meanwhile, don't allow legal changes to gender identity at all.

In socially conservative Romania, the process is relatively difficult. In 2021, the European Court of Human Rights ruled that Romania had violated the privacy rights of two transgender people when a judge refused on the grounds that they did not furnish proof that they had undergone surgery.

Mirzarafie-Ahi moved to the United Kingdom in 2008, became a British citizen in 2016 — the year of the Brexit referendum — and received a gender recognition certificate four years later, when Britain was on its way out.

But Romania refused his request to update his Romanian passport, which he said effectively restricted his travel. Freedom of movement is one of the key pillars of the E.U., allowing citizens to live and work anywhere in the bloc.

Mirzarafie-Ahi was also denied a new birth certificate and identity card, which Romanians need for everyday interactions such as using public transportation, going to the bank or picking up the mail.

Generally, an issue like gender certificates would be deemed a national issue. However, national laws can clash with E.U. laws when there is a cross-border dimension.

"It goes to the issue of competence, meaning, does the E.U. have the power to have any say over these things? It's like in the States: Is it a state issue? Or a federal issue?" said Catherine Barnard, an expert in E.U. law at the University of Cambridge. "When it comes to anything that gets in the way of free movement, then the E.U. has the power."

She said that in theses kind of cases, free movement has become a kind of "Trojan horse" to push change.

"Of course, to liberals, it's a good thing, to use the courts to push Romania to become more progressive, but if you're more conservative or hostile to the E.U., you can say, 'How dare the E.U. interfere with things that go to the heart of our beliefs,'" she said.

Rulings by the European Court of Justice are binding and impact millions of people across the bloc. But that doesn't necessarily mean they are implemented.

In 2018, the court ruled in favor of Adrian Coman, a gay man from Romania, who fought for the right to have his American husband, Clai Hamilton, live with him in Romania. The couple had been married in Brussels, where same-sex marriages are permitted and where Coman worked as an E.U. official. But authorities in Romania, where same-sex marriage is barred, did not recognize their marriage.

The court acknowledged that E.U. residency rights are awarded to spouses and that "spouse" was gender neutral. The Coman case has been used in courts by same-sex married couples to win residency rights, including in Bulgaria . But Romania has yet to grant Hamilton residency rights.

The same resistance could follow Friday's ruling. But even if it does, "trans and intersex people in similar situations in other E.U. countries will in any event be able to use [Friday's] judgement in their own cases," said Marie-Hélène Ludwig, senior strategic litigation officer at ILGA-Europe, an advocacy group for LGBTQ+ people.