The Court of Justice of the European Union has held that national legislation preventing the amendment of gender data for a citizen who has exercised free movement rights is incompatible with EU law.
In the Shipova case, the Court ruled that a Member State cannot refuse to recognise the gender identity of one of its nationals where that person has moved to another Member State and seeks to have their official records amended accordingly.
The case concerned a Bulgarian national who had been registered male at birth and issued identity documents reflecting that designation. After moving to Italy, she began hormone therapy and lived publicly as a woman. She subsequently sought to have the gender entry on her birth certificate and related civil status records amended in Bulgaria.
Her request was rejected by the Bulgarian authorities despite medical and legal evidence supporting her gender identity. Under national law, as interpreted by the Supreme Court of Cassation of Bulgaria, the concept of “sex” was understood strictly in biological terms, excluding the possibility of amending gender data, names or personal identification numbers. The domestic courts considered that public interest, grounded in moral or religious values, outweighed the interests of transgender persons.
Faced with doubts as to the compatibility of this interpretation with EU law, the Bulgarian court referred questions to the Court of Justice of the European Union for a preliminary ruling.
The Court emphasised that although the regulation of civil status and identity documents falls within the competence of Member States, that competence must be exercised in compliance with EU law. It held that a discrepancy between a person’s lived gender identity and the gender recorded on official documents may significantly hinder the exercise of the right to move and reside freely within the European Union.
According to the Court, such inconsistencies may expose individuals to practical difficulties in everyday situations, including identity checks, cross border travel and professional activities, where they may be required to justify discrepancies between their appearance and official documentation. This, the Court found, constitutes a restriction on the freedom of movement attached to EU citizenship.
While restrictions on that freedom may be justified by objective public interest considerations, they must comply with the principle of proportionality and respect the fundamental rights protected by the Charter of Fundamental Rights of the European Union, including the right to respect for private life. The Court noted that this right encompasses gender identity and requires Member States to provide clear, accessible and effective procedures for its legal recognition.
The Court also held that national courts cannot rely on constitutional interpretations that prevent the application of EU law as interpreted by the CJEU.
The ruling has been welcomed by equality advocates. Lawyers representing the applicant argued that the decision strengthens legal certainty and dignity for transgender individuals and requires Bulgarian authorities to revisit pending cases in accordance with EU law. Observers have also suggested that the judgment may provide a basis for enforcement action against Member States that fail to ensure effective legal gender recognition where EU free movement rights are engaged.