EU court hears Hungarian transgender case

The Court of Justice of the European Union held a hearing today in the preliminary ruling procedure on legal gender recognition for trans people 

As we previously reported, on March 29, 2023, a judge at the Budapest-Capital Regional Court (Fővárosi Törvényszék) requested a preliminary ruling from the Court of Justice of the European Union (CJEU) in the case of a trans refugee who was refused legal gender recognition in Hungary. The trans man was recognised as a refugee by the Hungarian authorities in 2014 because he was persecuted for being transgender in his home country. In 2021, he applied to the National Directorate-General for Aliens Policing (Országos Idegenrendészeti Főigazgatóság) for a change of his gender and name under Article 16 of the EU's General Data Protection Regulation (GDPR). Following the refusal, he sought judicial review with the help of Háttér Society and the Hungarian Helsinki Committee. 

In the preliminary ruling procedure, the Budapest-Capital Regional Court asked the CJEU to give a ruling on three questions. First, whether it follows from Article 16 of the GDPR that – upon request – the authority is obliged to rectify personal data that have changed after being recorded in the register, such as the gender of the data subject. Second, if so, what evidence must be provided to support the request. Finally, whether it is necessary to prove that the person concerned has undergone gender affirming treatment. At the hearing held today, in addition to the European Commission, the governments of Hungary, France, Spain and the Netherlands, also representatives of Háttér Society and the Hungarian Helsinki Committee participated and expressed their views.

The ongoing proceeding before the CJEU is an important milestone in the fight to restore legal gender recognition in Hungary. The Hungarian legislator has not yet complied with the 2018 decision of the Constitutional Court in a similar case and the June 2020 judgment of the European Court of Human Rights. Refugees still do not have access to any procedure that would allow them to change their gender and name in their official documents, and in May 2020, the possibility for Hungarian citizens to obtain legal gender recognition, which had been available since the early 2000s, was abolished as well. 

"The preliminary ruling may go beyond the specific case, as a positive decision of the Court of Justice of the European Union will hopefully force the legislator to reconsider the procedures on legal gender recognition not only for refugees but also for Hungarian citizens, and bring them in line with EU law, including the relevant provisions of the GDPR." - said Eszter Polgári, Director of the Legal Programme at Háttér Society.  

The opinion of the Advocate-General is expected on 12 September 2024, the decision of the Court of Justice of the European Union later in the autumn.

Háttér Society carries out strategic litigation for legal gender recognition with the support of the European Union's Citizens, Equality, Rights and Values (CERV) programme, funded by the Shared Values programme run by the ÖKOTÁRS Foundation and its partners.