CJEU: Judgment in Case C-43/24 Shipova – free movement and lived gender
Today, the CJEU delivered its ruling in the case C-43/24 Shipova, marking a historic step forward for trans people’s rights across the EU.
The Court stated that under EU law provisions on freedom of movement and fundamental right to private and family life, member states have an obligation to legally recognise the lived gender of their nationals who have exercised their right to move and reside in another member state in their civil status registers; i.e. they must have a functioning process for legal gender recognition (“LGR”) in place. This is because, as the Court confirmed, identity documents and passports are key for EU nationals to enjoy freedom of movement, so in order to avoid “considerable inconveniences” in particular during identity checks or cross-border travel or in professional settings. Therefore, member states must provide identity documents and civil registry entries matching the person’s lived gender. The Court also recalled that tolerating discrimination against trans persons breaches their dignity and freedom. It also decided that national courts are not bound by supreme court’s decisions that run contrary to today’s judgment and EU law.
_____________________________________________________________________________________________
The Court of Justice of the European Union (CJEU) ruled Thursday that EU member states must update identity documents to reflect the gender identity of transgender citizens who have transitioned in another member state, finding that refusal to do so may violate the bloc’s guarantee of freedom of movement.
The court said discrepancies between a person’s lived gender identity and official identity documents can create practical difficulties during identity checks, travel, and professional activities, undermining the right to respect for private life under Article 7 of the Charter of Fundamental Rights of the European Union and the right to freedom of movement under Article 21 of the Treaty on the Functioning of the European Union.
The case concerned a Bulgarian national identified under the pseudonym “Shipova,” who moved to Italy and underwent social and medical gender transition before requesting that Bulgarian authorities update her birth certificate. Officials in Bulgaria denied the request, citing national legal interpretations that define sex strictly on biological grounds. The dispute was referred to the EU’s highest court to determine whether such a refusal conflicted with EU law after the Bulgarian Supreme Court of Cassation rejected the possibility of legal gender reassignment for transgender people.
The court has previously addressed transgender rights in EU law. In the 1996 decision P v S and Cornwall County Council, the court ruled that discrimination arising from gender reassignment constitutes discrimination based on sex under EU equality law. The decision addresses tensions between EU rights and domestic laws in some member states where legal gender recognition remains restricted.
Bulgaria’s Supreme Court ruled in 2023 that national law does not permit legal gender changes. The CJEU noted that national courts must ensure that domestic rules do not prevent the effective application of EU law. The ruling follows a similar judgment issued by the CJEU in 2024 involving Romania, in which the court determined that authorities violated EU law by refusing to recognize a transgender man’s legal transition carried out in the United Kingdom. In the current case, the CJEU emphasized that national courts must set aside interpretations of domestic law that conflict with binding EU legal principles.
Earlier this month, Advocate General Richard de la Tour issued a non-binding opinion advising the court that national authorities should not refuse recognition of gender identity where such refusal interferes with the exercise of EU free movement rights.
Under EU judicial procedure, CJEU rulings are binding on national courts when interpreting EU law. The Bulgarian Supreme Court of Cassation must therefore apply the court’s interpretation when resolving the dispute. The ruling may have broader implications for transgender individuals in several EU countries where legal gender recognition procedures remain restricted or unavailable. National courts across the European Union are required to apply the CJEU’s interpretation of EU law when similar questions arise, potentially influencing how member states reconcile domestic civil status laws with EU fundamental rights protections.
The post EU court rules member states must recognize transgender identity in official documents appeared first on JURIST – News.
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 