The Court of Justice of the European Union has ruled that Romania is to recognise the change in the metric sex of its national. The case concerns a female who moved from her homeland to the UK, where she was given approval to formally modify her documents, and sought designation of this procedure in Romania.
The Romanian court asked the EU Court of Justice whether the State had an work to automatically recognise decisions of the British authorities. The Court of Justice has ruled that if an EU citizen in 1 associate State has ‘changed sex’, Romania should approve that decision automatically, without any additional verification, immediately making appropriate changes to civilian position records. The judgement may be the beginning of the construction of an EU-wide, non-tractive strategy for automatic designation of decisions on sex change.
Judgment of the Court of Justice against EU treaties
In 2008, a woman, inactive underage, as she moved from Romania to the UK at the age of 16, gaining additional citizenship there. From 2017 to 2020, in accordance with the procedure in force in the Islands, she changed her name and metric sex from female to male, obtaining a sex designation Certificate (Gender designation Certificate). In 2021, she attempted to recognise akin modifications in her papers and civilian position records in Romania. The local civilian position office refused, indicating that, according to local law, a change in the metric sex requires a final judgement of the court. In this peculiar case, a ruling confirming the passage of procedures for the correction of selected sex characteristics akin to that of a individual to a typical of another sex (as in Poland, where specified a change requires the court to find pursuant to Article 189 of the Code of civilian Procedure).
However, the female did not want to initiate a fresh procedure due to the fact that she had already undergone a akin 1 in Britain. Instead, she sued the court for the decision of the office itself, demanding that he be ordered to change his name, sex and recognition number in her birth certificate. The Court of First Instance raised 2 questions for a preliminary ruling before the Court of Justice of the EU concerning whether Romania's failure to recognise a change in the metric sex in the United Kingdom violates EU law and whether it can be said that EU law has been infringed in this peculiar situation, since the United Kingdom has no longer been a associate of the European Union since 2020.
The Grand Chamber of the TEU answered both questions in the affirmative. In the Court's assessment, if an EU citizen in 1 of the associate States changes his name and metric sex, he has the right to automatically recognise this modification in any another associate State. specified a right is to be derived from the right to citizenship (Article 20 of the Treaty on the Functioning of the European Union – TFEU and Article 45 of the Charter of Fundamental Rights – NPP), freedom of movement and residence (Article 21(1) TFEU) and the right to respect for private life (Article 7 of the NRP).
The Court of Justice has acknowledged that ‘the questions of civilian position and the related standards concerning the change of the name and sex identity of the individual afraid are substance of the competence of the associate States and Union law does not affect that competence’ (paragraph 53). On the another hand, the Court pointed out that the refusal of a associate State to recognise a change of name and a metric sex may impede the exercise of freedom of movement by an EU citizen: ‘a discrepancy between the 2 surnames utilized for the same individual may lead to confusion and inconvenience, since many regular activities, both in the public and private fields, require proof of their identity’ (paragraph 54).
The refusal to recognise a change of data in civilian position records should therefore, in the assessment of the TEU, be regarded as a regulation on freedom of movement, which ‘can only be justified if it is based on nonsubjective considerations and is proportionate to the legitimate nonsubjective pursued by national law’ (point 59). However, the Court did not see specified an nonsubjective in this case, and even if it existed, the request to carry out a judicial procedure in order to modify data in civilian records would should be regarded as disproportionate. In the assessment of the TEU, the request to re-examine the grounds for changing the metric sex in another associate State "risks that the citizen will be put at hazard by a consequence another than that adopted by the authorities of the associate State which legally authorised that change of name and sex identity" (paragraph 68).
Sovereign States in shaping sex law
The judgement of the Grand home of the TEU is precedent due to the fact that it is the first ruling introducing into EU law a concept which can be described as "the right to automatic designation of a change in the metric sex made in another associate State". The ruling raises serious doubts from the point of view of the rule of the powers conferred on it by which the European Union does not have the power to specify and keep civilian position (see Articles 3 to 6 TFEU in conjunction with Article 5(2) of the Treaty on EU). It is worth noting that, while there are provisions of EU derived law expressly requiring associate States to mutually recognise judgments of courts in civilian and criminal matters, there are no akin provisions requiring the designation of decisions on the change of the metric sex in civilian papers and records. Moreover, the current Treaty provisions (Article 81(3) TFEU) clearly warrant the associate States "the right of veto" against any effort to impose on them, in the form of any possible Union legislation, "aspects of household law having cross-border implications". The removal of the request of unanimity is now only a request made by the European Commission and supported by the European Parliament in its resolution of 22 November 2023, as part of the wider centralist tendencies against which the Ordo Iuris Institute warns in this year's publication "Why do we request sovereignty?" (Amendments 103 and 104).
Creative explanation of a group of Luxembourg judges
However, without waiting for a possible amendment to Article 81(3) TFEU, the Court has skillfully “filled” this gap with a creative explanation of the general rules on the rights of EU citizens. The provisions referred to by the Court do not say anything about the rights of those struggling with sex identity disorders or sex issues. They only grant individual EU citizenship to nationals of associate States, guaranteeing them freedom of movement between them and the right to respect for private life. The link between these guarantees and the issue of changing the metric sex is highly controversial. What is different is the freedom of movement between associate States and what is different is the comfort of life in those countries. EU law guarantees that all EU citizen can travel between the associate States, as well as the right to reside in them, but does not warrant that they will prosper in these countries, for example, that all authoritative matters will be dealt with in their favour. In this context, the “understandings and inconveniences” that a individual with transsexual disorders may hypothetically experience, as a consequence of having to legitimize evidence with a sex another than the 1 presently declared, are legally irrelevant. However, associate States have the right to lay down their rules for maintaining civilian position records and issuing papers and to make consent to the change of the metric sex subject to prior verification. The example given by the Court is purely hypothetical due to the fact that nothing has happened to prevent the applicant from utilizing evidence or passport issued by the United Kingdom in Romania. EU law does not require persons travelling between associate States to exchange their identity cards.
Member States shall be deprived of another passage of sovereignty without their participation
The judgement of the CJEU in this case is straight binding only on the Romanian court which asked the questions referred for a preliminary ruling. Now he will most likely issue a conviction ordering the civilian state office to change the female metric sex from female to male. Nevertheless, the authority of the Court causes that, in practice, the explanation it makes is treated as a determinant of common standards. If the Court ordered Romania to recognise legal designation of a change in the metric sex of 1 woman, it is only a substance of time before the Court of Justice for akin questions and akin judgments. The judgement in question is so the beginning of the construction of an EU-wide, non-tractive strategy for the automatic designation of decisions on the change of the metric sex in papers and civilian position files. Importantly, the European Parliament and the Council of the EU, according to the TEU, will not gotta adopt any legal acts in this regard, because, from the Court's point of view, the request for specified a strategy simply stems from the right to freedom of movement and the right to privacy.
However, it must be stressed that the judgement of the Court of Justice concerns only a clearly defined area, namely the designation of decisions by national civilian position authorities to change the metric sex without further verification. The conviction does not mean that persons suffering from transsexual disorders request to be granted any additional rights, specified as early retirement for men who identify themselves as women.
Adj. Nicodemus Bernaciak, elder Analyst of the Ordo Iuris investigation and Analysis Centre
