In Case C-43/24, Shipova, the Court of Justice answered a number of questions referred by the Bulgarian Supreme Court of Cassation which, taken together, sought to ascertain whether the national legislation governing the amendment of data relating to the first name, patronymic name, family and personal identification number recorded in the civil status register, with a view to reflecting a change of gender undergone by the person concerned, is compatible with EU law. In particular, the Bulgarian legislation at issue, as interpreted by the national Constitutional Court, did not allow a change of gender to be recognised in official documents on the basis of the individual’s self-determination alone, instead requiring a physical modification affecting the biological sex of the person concerned.

The case concerns K.M.H., a Bulgarian national who, in 2017, was diagnosed with gender dysphoria and subsequently moved to Italy, where she now resides on a stable basis, and where she underwent hormone therapy as part of a process of female gender affirmation. Although K.M.H. identifies, appears and lives as a person of female gender, the Bulgarian authorities refused to amend the personal data recorded in the Bulgarian civil status register – namely, her first name, family name, patronymic and personal identification number – so as to align them with the female gender. As a result of that refusal, K.M.H. encounters, in her daily life, a number of difficulties stemming from the discrepancy between “her lived gender identity” and the sex indicated on her identity documents (para. 41).

Even though she does not hold documents issued by the Italian Republic recognising her gender identity as female and, therefore, in the absence of obstacles to free movement arising from the coexistence of divergent documents issued by different Member States, the mismatch between K.M.H.’s appearance and the gender indicated on her identity document means that she is frequently required to dispel doubts as to her identity and the authenticity of that document (para. 44).

In that context, the provisions of EU law which the Court of Justice was called upon to interpret concern the free movement of Union citizens. The Court focused on Article 21 TFEU, which confers on Union citizens the right to move and reside freely, on Directive 2004/38, and, finally, on Article 7 of the Charter of Fundamental Rights of the European Union, concerning respect for private and family life.

The right of citizens to move and reside freely under Article 21 TFEU is given more specific expression in Directive 2004/38, which lays down the conditions governing its exercise and the limitations thereto. In particular, Article 4(3) of that directive, concerning the documents required for the exercise of the right to free movement (identity card and passport), has been interpreted by the Court as meaning that the rules governing their issue – while remaining within the competence of the Member States – must not constitute an obstacle to the exercise of the right to move and reside freely (para. 47). As regards Article 7 of the Charter, the Court, on the basis of its correspondence with Article 8 ECHR, relied on the case-law of the European Court of Human Rights, which not only recognises the protection of gender identity as a constitutive element and one of the most intimate aspects of private life, but also derives from it a positive obligation on States to establish effective and accessible procedures ensuring that individuals can effectively enjoy respect for their gender identity, including, where appropriate, the amendment of the sex data in official documents (paras 50-51).

In the light of a combined reading of Article 21 TFEU, Article 4(3) of Directive 2004/38 and Article 7 of the Charter, also having regard to the case-law of the European Court of Human Rights under Article 8 ECHR, the Bulgarian legislation at issue was found to be incompatible with EU law, in that it is liable to give rise to discrimination based on the divergence between biological sex and gender identity.

Lastly, since that incompatibility eventually stemmed from a particular interpretation adopted by the Bulgarian Constitutional Court, while addressing the fourth preliminary question, the Court of Justice added that Articles 21 TFEU and 7 of the Charter are sufficient in themselves and do not need to be made more specific by other provisions. Accordingly, EU law also precludes a national court from being bound by an interpretation of domestic law provided by the Constitutional court of that Member State where this results in an obstacle to the amendment of data in the civil status register contrary to the interpretation of EU law given by the Court of Justice.

 

(Comment by Valeria Salese)