Hungarian Constitutional Court sides with trans refugee on legal gender recognition

The lack of legislation on legal gender recognition and related name change for foreigners permanently residing in the country is unconstitutional – ruled the Hungarian Constitutional Court. The petitioner, an Iranian trans man was represented by the legal aid service of Háttér Society.

The decision of the Constitutional Court arose in the context of a complaint by an Iranian refugee. The Iranian trans man arrived to Hungary in the summer of 2015, and asked for asylum. The Hungarian authorities found that he had been persecuted in his home country due to being transgender, and thus recognized him as a refugee. His documents, however, still referred to him as female, so he requested legal gender recognition according to the regular Hungarian procedure. The authorities rejected his request on the ground that Hungary does not have jurisdiction in his case, and he should submit his request in Iran, the country where he had been persecuted.

With the help of the legal aid service of Háttér Society, he requested judicial review of the authority's decision, but the court rejected to make law in a situation where no law is applicable. The case ended up at the Constitutional Court as a constitutional complaint.

In its decision published on June 21, 2018 the Constitutional Court rejected the constitutional complaint, on the ground that such procedure cannot address  missing legislation, on the other hand - proceeding ex officio - they found that is was an unconstitutional omission that the law does not provide for legal gender recognition and related name change for trans people legally residing in Hungary permanently.

The unanimous decision of the Constitutional Court, however, is not only relevant for trans foreigners. The decision confirms that legal gender recognition and related name change is a fundamental right of trans persons deriving from the principle of human dignity. The decision also emphasizes that medical interventions are not a prerequisite for legal gender recognition. The Constitutional Court gave a deadline of December 31, 2018 for the legislator to adopt a new legislation.

"We welcome the decision of the Constitutional Court and hope the legislator will not only adopt legislation for transgender refugees, but find a broader legal solution that guarantees quick, transparent and accessible legal gender recognition for all trans persons living in Hungary" - commented on the decision Tamás Dombos working at the legal aid service of Háttér Society. "The unanimous decision shows that there is broad consensus that this question should be legislated appropriately."

Until December 2017, there was no legislation in Hungary concerning legal gender recognition, authorities handled such requests via a customary procedure. Following a petition by Transvanilla Transgender Association, the Commissioner for Fundamental Rights found in September 2016 that the lack of legislation creates legal uncertainty, and legal gender recognition should be properly legislated. After the report was published, all legal gender recognition procedures were suspended for 15 months, until a new provision in the government decree on registries was adopted in December 2017. The new provision is very brief and is unclear on both the requirements of legal gender recognition and the procedure to follow, and has been interpreted by authorities in an arbitrary manner.