European court says transphobic countries must recognize trans people’s names & genders

Today, the Court of Justice of the European Union (CJEU) ruled that member states must recognize legal documents from other countries that reflect a person’s changed name and gender identity, regardless of the member state’s own laws on changing one’s name and identity.

This decision comes in light of a Romanian transgender man, Arian Mirzarafie-Ahi, who moved to the United Kingdom when the island country was still a member of the European Union (EU). Mirzarafie-Ahi had legally changed his gender identity and name while in the United Kingdom. He attempted to use his newly changed U.K. documents to receive an altered birth certificate from Romania. However, the country did not recognize his altered name and identity, leading him to sue Romania in the CJEU.

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Romania argued that the name and gender change violated their laws, and that, since the United Kingdom was no longer a member of the EU, any changes within that country do not need to be recognized by Romania under its obligations to other EU member nations.

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The court, however, argued that Romania’s reasoning would unlawfully restrict EU citizens’ freedom of movement and residence between different countries.

Additionally, the court argued that Romania’s policy would put an undue burden on individuals like Mirzarafie-Ahi, who would then have to be known as two different names and genders in different countries, creating legislative hurdles as they attempt to prove their identity. The court said such policies would restrict the “right to establish details of their identity as individual human beings, which includes the right of transsexual people to personal development and physical and moral integrity and to respect for and recognition of their sexual identity.”

The court also ruled that the status of the United Kingdom’s departure from the European Union is irrelevant, as individuals are still within their rights during the United Kingdom’s transition period while departing from the EU.

“When exercising his freedom of movement and residence in the United Kingdom, before the withdrawal of that Member State from the European Union and before the end of the transition period, respectively, he may rely, against that Member State of origin, on the rights pertaining to that status,” says the court.

Mirzarafie-Ahi told The Washington Post that this “really is quite amazing,” especially in light of his past experiences with Romania. When traveling to the country, he would often run into issues with border control, who would press him on the differences between his passport information and his actual appearance. They would ask invasive questions relating to what surgeries he had received and what his genitals were like. Romania refused to update his passport.

Now, however, he can openly state that he is from Romania.

This decision reflects a similar case from 2018, where the CJEU ruled that member states have to recognize same-sex marriages from other countries, even if they themselves do not allow such unions. The court’s ruling faced immense pushback from more conservative EU countries like Bulgaria which argued that the ruling would restrict their individual rights.

The same may be argued by EU member states now, says Catherine Barnard, an expert in EU law at the University of Cambridge.

“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.

Mirzarafie-Ahi’s legal counsel, human rights lawyer Iustina Ionescu, said in a statement, “Today’s verdict has shown us that trans people are equal citizens of the European Union. When you have rebuilt a life in another part of the European Union because you are not welcome in your own country, it is normal to ask to be treated with dignity when interacting with the authorities in your home country.”

Marie-Hélène Ludwig, senior strategic litigator with the LGBTQ+ rights organization ILGA-Europe, said in a statement, “Today’s ruling confirms that without mutual recognition of legal gender recognition from one Member State to another, the right to freedom of movement and residence is not guaranteed for trans people in the EU. It is a great victory that shows the power of strategic litigation in the EU.”

“This judgement will have an immensely positive impact, increasing legal protection for all trans people in the EU, all the more as certain EU countries like Romania still do not provide a legal framework for legal gender recognition conforming with European Court of Human Rights’ standards,” Ludwig added.

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