Foreign Affairs

European Top Court Rules Member States Must Acknowledge Changes To ‘Gender Identity’

Secretary of State Antony J. Blinken delivers joint remarks to the press with European Commission President Ursula von der Leyen before their meeting in Brussels, Belgium, on March 24, 2021. [State Department photo by Ron Przysucha/ Public Domain]

European union (EU) member states are required to recognize “gender identity” changes processed in other parts of the EU after the Court of Justice sided with a transgender man’s lawsuit against Romania on Friday.

The country of Romania refused to accept name and gender changes brought up by Arian Mirzarafie-Ahi in Britain when it was still a part of the EU, the ruling states. Romania’s refusal to update identity documents was a violation of citizenship rights and “free movement,” the court ruled.

“A Member State that does not permit recognition and entry in the birth certificate of a national of that Member State of a change of first name and gender identity lawfully acquired in another Member State, when exercising the right to free movement and residence, with the consequence that that person is obliged to initiate, before a court, new proceedings for a change of gender identity in the first Member State, which disregard the change that was previously lawfully acquired in that other Member State,” the ruling says.

“In that regard, it is irrelevant that the request for recognition and entry of the change of first name and gender identity was made in that first Member State on a date on which the withdrawal from the European Union of the other Member State had already taken effect,” the ruling continues.

Romania denied Mirzarafie-Ahi a new birth certificate and an updated passport, barring travel and everyday activities like getting mail or using public transportation, The Washington Post reported. After moving to the United Kingdom, Mirzarafie-Ahi received a “gender recognition certificate,” when Britain was on its way out because of Brexit.

“Gender, like a first name, is a fundamental element of personal identity,” the court said in a press release, according to The Washington Post. “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.”

EU countries that don’t permit name and gender identity changes obtained in a different member state are considered to be opposite of the European Union Law, impeding on the “exercising of the right of free movement and residence,” the court stated in the press release, according to The Washington Post.

Countries like Bulgaria and Hungary do not permit changes to gender identity and name, while others such as Belgium, Ireland and Spain allow individuals to “self-declare,” The Washington Post reported. “Surgical interventions” along with sterilization is a requirement in EU countries like Slovakia, Latvia and Cyprus.

“It goes to the issue of competence, meaning, does the EU have the power to have any say over these things?” Catherine Barnard, an expert in EU law at the University of Cambridge, told The Washington Post. “It’s like in the States: Is it a state issue? Or a federal issue? When it comes to anything that gets in the way of free movement, then the EU has the power.”

“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 EU, you can say, ‘How dare the EU interfere with things that go to the heart of our beliefs,” Barnard told The Washington Post.