site.btaBulgarian Courts Must Not Refuse Transgender Persons' Gender Data Alteration in Civil Status Registers, EU Court Rules

The judgment of the Court of Justice of the European Union (CJEU) in Case C-43/24 makes a historic headway in EU law and  transgender persons' rights, lawyer Denitsa Lyubenova, who chairs the LGBTI Deystvie Association, told a news conference here on Thursday.

"The EU Court opens a door to our community to cite precisely this judgment and take advantage of EU law and be able to travel freely within the EU and, without the qualifying sojourn, to be able, merely registering for the purpose of proving the sojourn, to return and seek recognition and amendment in the civil status registers," Lyubenova explained.

She added that all cases stayed pending a CJEU ruling will now be reopened, and it remains to be seen how the different court panels will interpret the judgment of the EU Court. In Lyubenova's words, the judgment entails that when a Bulgarian national, who is a transgender person, has exercised their right to freedom of movement, Bulgaria, as Member State of origin of that person, may not restrict their right to have their personal data altered in the civil status register.

In the case at hand, the CJEU was approached with a request for a preliminary ruling by Bulgaria's Supreme Court of Cassation (SCC).

In its judgment, the CJEU determined that Bulgarian courts should not refuse the recording of a change of gender data in the civil status register of persons claiming to be transgender because these courts must not bound by the interpretation of domestic legislation in a 2018 decision of the Constitutional Court and a 2023 judgment of the SCC that contradict the interpretation of EU law given by the CJEU.

By a decision of October 26, 2021, the Constitutional Court held that the term 'sex', within the meaning of the Bulgarian Constitution, must be understood as referring exclusively to its biological dimension, on account of the moral and/or religious rules and principles which must prevail over the interests of transgender persons.

Based on that decision, the Plenary Assembly of the SCC Civil Chambers ruled in an interpretative judgment of February 20, 2023 that the substantive law in force in Bulgaria does not provide for the possibility of changing the data relating to the sex, name and personal identification number appearing in the civil status documents of a person who claims to be transgender and that EU law does not call for a different conclusion, since the rules on the civil status of persons fall within the competence of the Member States.

In the case before the CJEU, Lyubenova represented K.M.H., who was born in Bulgaria and is registered in its civil status register as being male, with a name composed of a forename, patronymic and surname corresponding to that sex and with a personal identification number and an identity document which identify her as male. However, since her childhood, K.M.H. has always felt like a woman in her appearance, behaviour, perception, emotions and mannerisms. After consulting a specialist in endocrinology and andrology, K. M. H. began hormone therapy in Italy, where she currently lives.

"The refusal to amend and recognise the gender identity which a national of one Member State has lawfully acquired in another Member State is liable to cause serious inconvenience for that national at administrative, professional and private levels," the EU Court said. "National legislation which prevents a transgender person, in the absence of recognition of his or her gender identity, from fulfilling a requirement which must be met in order to be entitled to a right protected by EU law, must be regarded as being, in principle, incompatible with that law," it argued.