Bulgaria asked to recognize trans' 'lived gender identity'

Bulgarian authorities should not have the right to refuse to issue a transgender woman with identity documents corresponding to the sex she now presents herself as, according to a non-binding legal opinion issued as guidance ahead of a case being heard at the European Court of Justice. 

Advocate General (AG) Richard de la Tour recommended this to the court on Thursday. While his opinion is only advisory, such advice tends to reflect an eventual verdict in around two thirds of cases.

He argued that the details of Bulgaria's refusal risked infringing on the person's right to an identity card enabling things like freedom of movement and residency within the EU.

What is the case about?

The case concerns a Bulgarian national, with the alias "Shipov" used on court documents, registered at birth as of male sex who has undergone hormone therapy and now identifies as a woman. 

"The discrepancy between her feminine appearance and her official identity documents as a person of the male sex causes problems she encounters on a daily basis, in particular looking for a job," an ECJ press release summarizing the opinion said. 

She applied for changes to be made recognizing her sex as female and changing details of her civil status on her birth certificate and was refused. Bulgarian courts interpret national law as only permitting changes to gender on identity documents that correspond with the birth certificate.

Bulgaria's Supreme Court of Cassation, where the individual appealed, then forwarded the case to the ECJ, saying that it did not believe domestic law as currently interpreted could be reconciled with EU law. The Advocate General concurred in Thursday's opinion. 

What was the basis for the AG's opinion? 

De la Tour proposed in his opinion "that EU law precludes national legislation, such as that interpreted by the [Bulgarian] national courts, that does not allow the legal recognition of gender identity for its nationals, including in the absence of gender reassignment surgery, or permit changes to their name or personal identification number to be legally recognized." 

The AG said that the Bulgarian law requiring "the indication of the person's sex based solely on the birth certificate ... gives rise, due to the purpose of that document, to an obligation for that State to legally recognize the lived gender identity and to record it in that document." 

This was necessary to enable a person to identify themselves without raising questions about the authenticity of their ID documents or the veracity of the information within them, he argued.

De la Tour's opinion was that any law which, "by failing to recognize the gender identity of a transgender person, prevents that person from enjoying a right guaranteed by EU law, such as obtaining an identity document enabling them to freely exercise their right to move and reside within the territory of the Member States, constitutes a restriction on that right." 

The AG also recommended that the changes to an ID card "cannot be subject to the production of evidence of gender reassignment surgery." 

"Such a requirement would undermine, in particular, the right to respect for private life," the ECJ summary said.

Edited by: Rana Taha