Tag Archives: news

UN experts alarmed at new Belarus law targeting LGBTQ+ and women rights

A group of seven UN experts expressed alarm on Wednesday about a new law aimed at repressing LGBTQ+ voices and proponents of human and women’s rights in Belarus.

The experts were concerned that this repression would breed further harassment and marginalization of LGBTQ+ individuals, women, and other minority groups:

This law represents a dangerous escalation. It equates legitimate human rights advocacy with an administrative offence and risks further legitimising persecution against already marginalised groups and defenders of their rights … By conflating human rights advocacy and information about sexual orientation, gender identity and reproductive autonomy with administrative offences, the authorities are fuelling prejudice and legitimising discrimination.

The experts urged Belarus officials to review the bill and to carefully consider all of the concerns expressed before enacting the law.

On April 2, the Council of the Republic of the National Assembly of Belarus approved a law that prohibits the distribution of “propaganda of homosexual relations, gender reassignment, childlessness, and pedophilia.” The bill imposes fines on both individuals and legal entities. Minors may also be fined or subjected to community service or administrative detention. “Propaganda” is vaguely defined in the law as the dissemination of “appealing” information that is “intended to influence citizens’ perceptions.”

The bill was a part of a broader introduction of multiple administrative offenses and the adjustment of presently existing offenses to bring them in line with current industry legislation. Human Rights Watch also said that this new bill represented yet another “blow” to LGBTQ+ people. The law inappropriately lumps together categories such as pedophilia and freedom of gender expression, breeding more stigmatization toward “non-traditional” sexual behavior classifications.

According to a recent survey, over 66 percent of queer people do not feel protected by police in Belarus in the event of a discriminatory attack. Moreover, only about 14 percent of individuals reported incidents of violence or discrimination to the police. Belarus’s new law thus parallels the events and atmosphere unfolding in Russia, whose Supreme Court has previously characterized the LGBTQ+ movement as “extremist.”

The post UN experts alarmed at new Belarus law targeting LGBTQ+ and women rights appeared first on JURIST – News.

Repost: Claudia E. Haupt, Marketplace of Malpractice (on USA/Idaho: Conversion Therapy)

Leave a reply

Every day we depend upon the counsel of our doctors, lawyers, engineers, accountants, architects, and pharmacists. Yet, in a startling decision, the Supreme Court recently struck down Colorado’s ban on “conversion therapy” for minors in an opinion that threatens to undermine the professional advice on which we all constantly rely. In a world in which it is increasingly difficult to discern what’s true and what’s false, what’s beneficial and what’s harmful, professionals have on the whole remained dependable sources of good information. The law encourages and safeguards our reliance on professional advice. But, thanks to the Court’s unusually obtuse decision, that may now change.

The case before the Court involved a Colorado law prohibiting licensed counselors from attempting to change the sexual orientation or gender identity of a minor. Counselors could, however, assist minors who were undergoing gender transition. A licensed mental-health counselor, Kaley Chiles, challenged Colorado’s law because it permitted her to encourage gender transitions but not to oppose them. She contended that the law discriminated on the basis of viewpoint and thus violated her First Amendment right of freedom of speech.

The Court uncritically endorsed Chiles’ argument. It reasoned that “as a talk therapist, all Ms. Chiles does is speak with clients.” The Court condemned Colorado because it sought to regulate Chiles’s speech because of what she said. It did not matter that Chiles was a licensed professional doing her job. The First Amendment, said the Court, “protects the right of all” to speak as they will, including professionals. Colorado could not “suppress views Ms. Chiles wishes to express”; it could only regulate speech that was incidental to conduct, as for example by requiring informed consent before medical procedures. But here Colorado was simply regulating “speech as speech.”

Pulling out large rhetorical guns, the Court insisted that the First Amendment means “that every American possesses an inalienable right to think and speak freely” and that “the free marketplace of ideas” is “the best means for discovering truth.” “However well-intentioned,” the Court said, “any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”

This reasoning is simply nonsense in the context of the professional speech that all of us rely on all the time. We extend extraordinary protections to political speech, but not to the ordinary communications of professionals, which are routinely regulated. Take the case of lawyers. Lawyers do nothing but talk. They give advice; they advise clients on how to draw up wills, contracts, and other legal documents; they offer opinions on the legality of transactions; and so on. On the Court’s reasoning, to regulate these communications is to regulate “speech as speech.” Lawyers possess an inalienable constitutional right to communicate as they please because the marketplace of ideas will ensure that in the end truth will emerge. Hogwash.

At present, the speech of lawyers is governed by a framework of legal guardrails to ensure that their clients receive comprehensive, competent, and trustworthy advice. Lawyers are subject to licensing, discipline, malpractice liability, and fiduciary duties. These are all viewpoint-based limits on speech. The state distinguishes competent from incompetent speech, subjecting the latter to the penalties of malpractice.

The state makes these viewpoint distinctions so that clients can rely on the advice of their lawyers. There is no marketplace of ideas between clients and lawyers. If Justice Gorsuch, who wrote the Court’s opinion, were to consult his lawyer to draft a will, and if (God forbid) his lawyer were to commit professional malpractice by drawing up an invalid will, and if Justice Gorsuch were to sue his lawyer, the incompetent lawyer could not defend by invoking the marketplace of ideas.

Gorsuch’s lawyer could not claim, as Justice Holmes asserted in defining the marketplace of ideas, that the proposed will was “an experiment, as all life is an experiment.” Gorsuch did not visit his lawyer to engage in abstract debate. He did not care about the eventual emergence of truth. He had important business to transact, the crafting of a workable will.

The law currently protects Gorsuch’s expectations. But now, after his ill-considered opinion in the Colorado case, all that is open to question. We doubt whether the Court would make such an obvious error were it not so anxious to strike yet another blow in its ongoing war against protections for LGBTQ lives. The Court has increasingly conscripted the First Amendment into that assault, without apparent consideration of the consequences.

Like lawyers, the professional life of accountants, engineers, and architects transpires through speech. Much of what doctors do also occurs through the medium of speech. States require licensing and pervasively regulate professionals because society cares that their speech be competent. Clients and patients ought to be able to rely on the speech of professionals. They should be able to expect more than just speculation. They should receive reliable advice grounded in competent expertise. And, if things go wrong, they ought to be able to hold professionals accountable.

This is what the entire framework of professional regulation exists to guarantee. This is what the Court has just thrown into doubt.

The post Marketplace of Malpractice appeared first on Verfassungsblog.

Repost: Sarthak Gupta, State Bodies (on India: Transgender Persons (Protection of Rights) Amendment Act, 2026)

Leave a reply

On 30 March 2026, the Transgender Persons (Protection of Rights) Amendment Act, 2026 (“New Trans Rights Act”), received Presidential Assent, completing a legislative process that took less than three weeks from introduction to law. The Bill had cleared both Houses of Parliament amid Opposition walkouts and protests, without pre-legislative public consultation, without referral to a Parliamentary Standing Committee, and without engagement with the National Council for Transgender Persons. What emerged was a law authored without the people most governed by it.

TState Bodies he New Trans Rights Act reorganises the terms on which transgender lives become intelligible to law. Its animating logic, that trans identity is an “acquirable characteristic” the state must verify rather than an irreducible human experience it must recognise, directly confronts the constitutional architecture erected by the Indian Supreme Court in previous case law. The Act re-medicalises identity, re-bureaucratises recognition, and risks criminalising both community kinship (guru/chela) structures and legitimate gender-affirming care.

Who is a “transgender person”?

Under the existing Transgender Persons (Protection of Rights) Act, 2019 (“2019 Act”), a transgender person was defined as “a person whose gender does not match with the gender assigned to that person at birth”, broad, inclusive of trans men, trans women, genderqueer persons, and persons with intersex variations, and expressly independent of surgical or hormonal intervention. Section 4(2) codified the right to self-perceived gender identity. The New Trans Rights Act removes both.

The new definition of ‘transgender person’ proceeds in two limbs. The first covers only persons with named socio-cultural identities (kinner, hijra, aravani, jogta, eunuch), persons with specified intersex variations, and persons forcibly compelled to assume a transgender identity through mutilation or surgical, chemical, or hormonal procedures. The second limb is a proviso that excludes persons with “self-perceived sexual identities.” This is a form of indirect discrimination within the trans community, wherein the hierarchy of recognisability is artificially created by privileging identities that are either culturally codified or medically verifiable over those that are self-perceived.

Trans men, trans women, non-binary persons, and genderqueer individuals, none of whom necessarily belong to the named socio-cultural communities and none of whom necessarily present intersex variations, are excised from the statute entirely. They constitute a substantial portion of persons who have historically sought certificates of identity under the 2019 Act and who face documented discrimination in education, employment, and healthcare.

This narrowing stands in tension with decades of scholarship demonstrating that gender-variant identities in South Asia are neither fixed nor reducible to discrete socio-cultural categories. Hijra identities themselves are internally diverse, religiously syncretic, and historically fluid (see Reddy and Loh), while the imposition of rigid classificatory frameworks often reflects colonial and postcolonial state logics rather than lived realities (see Dutta & Roy). It also stands in direct contradiction to NALSA’s foundational holding that “transgender” is an umbrella term embracing a wide range of identities and experiences, and that any attempt to confine it to specific socio-cultural communities imports precisely the classificatory errors the Court sought to dismantle (see NALSA, para 19; para 81 (Sikri J.)).

The State’s justification for the narrowing rests on three grounds: (a) that the prior definition was “vague,” (b) that it made it “impossible to identify the genuine oppressed persons,” and (c) that it was incompatible with several existing statutory enactments. Each ground fails on examination. The vagueness argument misunderstands gender identity. Identity is not vague; it is complex, because it is internally experienced rather than externally observable. NALSA engaged precisely this complexity and concluded that self-determination, not medical verification, was the constitutionally appropriate response (see NALSA, para 19). To call self-determination a source of vagueness is to restate the biomedical premise the Court rejected. The impossibility argument is contradicted by the data, i.e., over 32,000 certificates had been issued as of March 2026 with 5,566 rejected applications, demonstrating a functioning, not unworkable, system. The incompatibility argument is the most constitutionally dangerous, for it recasts rights-bearing identity as administratively suspect. The Statement of Objects and Reasons asserts that a statute conferring rights cannot define its beneficiary class by reference to an “acquirable” characteristic. Applied consistently, this logic would undermine every protective statute defining its beneficiaries by reference to religion, belief, or disability. What is presented as a technical objection is, in substance, an argument against rights themselves.

The inclusion of persons “forcibly compelled” to assume a transgender identity as a definitional category of transgender persons is analytically incoherent. Such persons are victims of abduction and bodily harm, not transgender persons in any meaningful sense. Their inclusion conflates identity with victimisation and stigmatises the entire category by associating transgender identity with coercion and violence. It also produces a legal absurdity. A person forcibly castrated and compelled to present as a hijra, even though hijra identity is constituted not by bodily presentation but by community membership, kinship, and social belonging, qualifies under the new definition, while a trans man who has lived his gender identity for decades, sought no surgery, and belongs to no named socio-cultural community, does not. This conflation echoes anthropological misreadings that collapsed hijra identity into practices of emasculation (see Hossain), ignoring its social, ritual, and kinship dimensions (see Nanda).

The Medical Board as Gatekeeper

The New Trans Rights Act inserts a new provision, i.e., Section 2(aa), which defines an “authority” as a medical board headed by a Chief Medical Officer or Deputy Chief Medical Officer. By amending Section 6 of the 2019 Act, the District Magistrate is now required to examine the recommendation of this authority before issuing a certificate of identity. The District Magistrate may also take the assistance of “other medical experts.” The 2020 Trans Rights Rules, enacted under the 2019 Act, had expressly clarified that no medical or physical examination would be required as a precondition to the issuance of a certificate. The New Trans Rights Act reverses this entirely.

The change may appear procedural. It is not. In NALSA, the Court held that self-determination of gender identity falls within personal liberty under Article 21 of the Constitution, and directed legal recognition without conditioning it on medical procedures. (see NALSA, para 69 and para 74). This holding was subsequently affirmed in Navtej Singh Johar, where the Court grounded the right to identity in “individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity” as the “cardinal constitutional ideals” (see Navtej, para 3, Majority Opinion). Where the 2019 Act treated self-declaration as the trigger for administrative processing, the New Trans Rights Act places a medical board between the person and the state. Recognition is now conditional on institutional validation. A right has become a permission.

The medical board model also carries a structural constitutional problem visible in another domain. Persons with disabilities in India have long experienced the perverse consequences of medical boards applying inconsistent standards, the same individual receiving different disability percentages from different boards, with real consequences for education and employment. The analogy is instructive: where identity or entitlement is mediated through expert certification, arbitrariness becomes structural rather than exceptional. As Rahul Bajaj notes, in Vikash Kumar v. UPSC, the Supreme Court directly addressed the misuse justification for restricting disability facilities. Its response was unequivocal: the mere possibility of misuse cannot justify denying a benefit to an entire class. The same logic compelled this Court in Navtej to hold that the existence of Section 377, justified on the same speculative misuse rationale, was unconstitutional (see Navtej, para 95). The New Trans Rights Act’s implicit justification, preventing fraudulent identity claims, founders on exactly this reasoning. The Statement of Objects and Reasons identifies no specific, documented pattern of fraud under the 2019 Act. Speculative misuse cannot justify systemic exclusion.

There is a deeper epistemological problem. The new definition retains socio-cultural identities, hijra, kinner, aravani, jogta, alongside intersex variations, but a medical board can assess only the latter. Whether a person belongs to the hijra socio-cultural community requires engagement with community history, lived experience, and social belonging, questions for which medical expertise is the wrong instrument. NALSA itself acknowledged this when it observed that hijras “belong to a distinct socio-religious and cultural group” whose identity is determined not by biology but by social belonging (see NALSA, para 70).

The Surveillance of Trans Bodies

The New Trans Rights Act also amends the mandatory hospital reporting requirement in Section 7 in two ways. The word “may” is replaced with “shall,” making it mandatory for persons who undergo gender-affirming surgery to apply for a revised certificate. A new sub-section 1A requires medical institutions to furnish details of such persons to the District Magistrate and the authority.

The mandatory disclosure requirement raises serious concerns about the right to privacy. State interference with privacy must be backed by law, serve a legitimate state aim, and be proportionate. The first condition is met. The other two are not. The Statement of Objects and Reasons identifies no legitimate aim served by requiring hospitals to report gender-affirming surgeries to district authorities. The Amendment’s overall orientation, toward verification and control of who qualifies as transgender, suggests the aim is surveillance rather than welfare. The Yogyakarta Principles, which NALSA expressly adopted as a framework, specifically prohibit compelling any person to “undergo medical procedures, including surgery, sterilization or hormonal therapy” as a condition of legal recognition, and equally prohibit state surveillance of gender identity as a condition of protection (see NALSA, para 22; Yogyakarta Principle 18) Mass surveillance of a constitutionally protected characteristic cannot constitute a legitimate state aim under Puttaswamy. India’s data protection law further requires consent for processing personal health data, a requirement the mandatory reporting provision bypasses without justification.

The practical consequence is a chilling effect on access to care. Trans persons who would otherwise seek legitimate medical transition may avoid hospitals to evade state reporting, being driven toward unregulated and unsafe alternatives. In Navtej, the Court expressly recognised that the existence of provisions targeting LGBT persons, regardless of enforcement, produces a chilling effect that “builds insecurity and vulnerability into the daily lives” of those communities. The surveillance apparatus, ostensibly protective, may function to harm.

The New Offences and Their Paradoxes

The substituted Section 18 adds serious new offences: kidnapping combined with grievous hurt to force assumption of transgender identity attracts ten years to life for adults and mandatory life imprisonment for children; forcing a person to present as transgender and engage in begging or servitude attracts five to ten years for adults and ten to fourteen years for children. The State justification, addressing documented abduction and forced bodily modification, is not without foundation or any data. But the provisions as drafted are simultaneously over-inclusive and under-inclusive.

The gharana system, the structured kinship network of guru and chela that organises community life for hijra, kinner, and related groups, has historically been the primary social safety net for gender non-conforming persons abandoned by natal families (see Goel). The new offences in clauses 18(e) to 18(h) are structured around “allurement,” “inducement,” “deception,” and “compulsion”, undefined and elastic terms. Gharanas, the only home many trans persons have known, could be mischaracterised as sites of allurement or inducement, exposing community leaders to prosecution for acts of bona fide care. Police in India have historically harassed hijra communities under vagrancy provisions. New legislative categories carrying life imprisonment will not be applied with greater discernment. As Gopi Shankar Madurai observes, the new clauses target external perpetrators while leaving internal exploitative hierarchies untouched, effectively legitimising the exploitative dimensions of established community structures while criminalising the protective ones.

The inclusion of “surgical, chemical, or hormonal procedures” within “grievous hurt” risks criminalising legitimate gender-affirming care. Medical professionals assisting voluntary transitions may fear prosecution under provisions not clearly confined to coercive contexts. The concern extends further: hormonal procedures prescribed for polycystic ovary syndrome, menopause, or cancer fall within the literal language of the provision. The phrase “outwardly present a transgender identity” compounds this by treating transgender identity as a performance, something one can be compelled to do rather than something one is. NALSA held that “values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a)” (see NALSA, para 66). Reducing identity to an “outward presentation” enshrines in criminal law the stereotype that trans identity is a choice of appearance, precisely the stereotype that has sustained centuries of stigma and violence against trans communities.

Finally, the asymmetry in penalties exposes the Amendment’s true priorities. The existing offences, physical abuse, sexual abuse, and forced displacement of transgender persons retain a two-year maximum sentence, a sentence community advocates have challenged as grossly inadequate. The Amendment creates life imprisonment as maximum punishment for forcing a child to present as transgender (Section 18(e)(f), but leaves at two years the maximum for sexually or physically abusing a transgender person (Section 18(d). The legislation is more concerned with managing the boundaries of transgender identity than with protecting transgender lives.

Conclusion

The Trans Rights Act arrives at a moment when India’s constitutional jurisprudence on gender identity, rooted in NALSA and awaiting elaboration in the pending challenge to Section 7 of the 2019 Act, was poised to move forward. Instead, it re-medicalises identity, re-bureaucratises recognition, and narrows protection at the precise moment the community needed welfare, upliftment, and expansion of rights. The state’s interest in precise definitions and administrative clarity is legitimate, but the Trans Rights Act pursues it at the direct expense of protection, treating identity, that most intimate of human attributes, as a claim requiring verification rather than a person requiring recognition. The Constitution still stands. So does the directive in NALSA. Whether courts will act on that directive remains to be seen, but the legislative record is now clear, and it is not a flattering one.

Disclaimer: The post was submitted before the bill was passed.

The post State Bodies appeared first on Verfassungsblog.

Idaho criminalizes transgender bathroom use

Leave a reply

Idaho’s governor signed a bill into law on Tuesday that prohibits transgender individuals from using bathrooms and changing rooms that align with their gender identity.

The bill applies to those who enter such spaces “knowingly and willfully.” First offenses carry a misdemeanor penalty of up to one year in prison. Repeat violations, including those that occurred in other states with similar laws, trigger felony charges with a maximum sentence of five years.

Bill opponents condemned it as part of a continuous attack on transgender individuals. ACLU of Idaho legal director Paul Carlos Sorwick called it part of “an overall campaign” that targets transgender individuals. State Sen. Ron Taylor (D) said some constituents told him they would leave Idaho, fearing their children would be arrested. Planned Parenthood Alliance Advocates of Idaho called the bill one of “the most extreme anti-transgender bathroom ban in the nation.” Nikson Mathews, Idaho Democratic Queer Caucus chair, said Idaho legislators have shifted “from refusing to protect [LGBTQ+ individuals] to actively targeting us.”

This is the latest in anti-transgender legislation out of Idaho. In 2023, state Senate Bill 1100 restricted all bathrooms and changing rooms in public K-12 schools to sex assigned at birth. It also permitted students to recover up to $5,000 for each time a transgender student entered a restroom that did not align with their biological sex. The ACLU reported that the law pushed trans-students into separate, “private” facilities.

In 2025, Idaho House Bill 264 expanded such coverage to bathrooms and sleeping quarters in various public institutions. Namely, these include correctional facilities, domestic violence shelters, juvenile correctional centers, and state universities.

In 2025, the UCLA School of Law’s Williams Institute found no evidence that transgender restroom access increases violent victimization of strangers. A 2013 Williams Institute study found that transgender people face significant risks in gender-segregated facilities. Among respondents, 68 percent reported verbal harassment and nine percent reported physical assault. ACLU of Idaho argued the new law forces transgender individuals to choose between entering unsafe spaces or risking criminal charges.

The post Idaho criminalizes transgender bathroom use appeared first on JURIST – News.

India passes transgender rights amendment, prompting concerns over compliance with Supreme Court precedent

Leave a reply

President Droupadi Murmu on Tuesday assented to the Transgender Persons (Protection of Rights) Amendment Bill, 2026, a measure that Amnesty International says restricts the ability of transgender and gender-diverse individuals to self-identify. Aakar Patel, chair of Amnesty International India’s board, criticized the law, stating: “This regressive law dilutes safeguards and deepens state intrusion into the lives of transgender people.”

The Transgender Persons (Protection of Rights) Amendment Bill, 2026, was passed by voice vote in both houses of Parliament on March 25, completing its legislative approval process. Opposition leaders raised concerns over the expedited process and urged that the bill be referred to a standing committee for broader consultation with stakeholders. Under the amended framework, transgender individuals are required to undergo a series of official verification procedures before their gender identity can be legally recognized by authorities.

The amendment introduces a narrower definition of “transgender,” limiting recognition to specified socio-cultural categories and biological variations. It also removes a separate definition of intersex persons, grouping them within the broader transgender category. Additionally, the law establishes criminal penalties for “compelling,” “forcing” or “alluring” a person or child to present as transgender, with punishments extending up to life imprisonment.

Legal observers note that the amendment departs from principles articulated by the Supreme Court in NALSA v. Union of India of 2014, in which the Court recognized gender identity as a matter of personal autonomy and affirmed the right to self-identification without mandatory medical intervention. The new framework replaces the Court’s recognition of self-identification with a system requiring certification by a medical board and subsequent recognition by a District Magistrate, raising concerns among critics about increased state oversight and potential inconsistencies with constitutional protections and international human rights standards.

The legislation was enacted despite objections from a Supreme Court-appointed expert committee on transgender rights, which had recommended withdrawing the bill and conducting further consultations with affected communities. The committee explicitly asked the government to withdraw the bill and engage in meaningful consultation with transgender communities. However, the government proceeded with the legislation.

Meanwhile, the Rajasthan High Court cautioned that legislative changes cannot dilute constitutional guarantees, particularly those recognized in prior Supreme Court rulings, signaling the potential for future legal challenges to the amendment.

The post India passes transgender rights amendment, prompting concerns over compliance with Supreme Court precedent appeared first on JURIST – News.

Interesting Repost: Uladzislau Belavusau, Sexual Citizenship via Free Movement [Verfassungsblog 13 March 2026 on the judgement of the Court of Justice of the EU in Shipov (C-43/24, 2026), issued on 12 March 2026]

Leave a reply

Yesterday, in the judgment of Shipov, the Court of Justice decided how EU citizenship can shape the recognition of gender identity within the Member States. Yet not through anti-discrimination law, but through the constitutional logic of free movement. The Court of Justice held that EU law precludes national legislation preventing a Union citizen from changing gender-related data in civil-status records in relation to the exercise of free movement. While formally grounded in Article 21 TFEU and Directive 2004/38, the case raises broader constitutional questions about the evolving relationship between citizenship, gender identity, and fundamental rights in the EU. Shipov follows the AG’s “minimal intrusion” logic and reinforces its reasoning by drawing heavily on Strasbourg jurisprudence. Finally, by linking gender identity to the effectiveness of EU citizenship, even under a relatively modest cross-border link, the Court further expands the role of Union citizenship as a vehicle for protecting personal identity and dignity.

Identity documents and the logic of free movement

The judgement of the Court of Justice in Shipov (C-43/24, 2026), issued on 12 March 2026, marks another step in the gradual constitutionalisation of sexual and gender identity within EU law. The Court held that EU law precludes national legislation preventing the amendment of gender-related data – including name and personal identification number – in civil-status registers of a Union citizen who has exercised free movement. In doing so, the Court treated identity documents not merely as administrative instruments but as essential legal tools enabling the effective exercise of EU citizenship rights. If the information contained in such documents no longer corresponds to a person’s lived identity, the resulting inconsistencies may create concrete obstacles in everyday cross-border interactions, ranging from border checks to employment procedures.

The decision continues a line of cases where the Court linked questions of personal identity to the effectiveness of EU citizenship rights. Earlier judgments such as Garcia Avello (C-148/02, 2003), Grunkin and Paul (C-353/06, 2008), Coman (C-673/16, 2018), and V.M.A. (C-490/20, 2021) similarly treated matters of personal status – names, marriage, or parenthood – as capable of restricting the effective exercise of free movement. Previously, I have commented extensively about the Coman case here on VerfBlog and elsewhere (with Dimitry Kochenov).

At first glance, however, Shipov appears doctrinally unusual. The dispute concerned only Bulgarian civil-status records. Unlike the earlier cases mentioned above, it did not involve the recognition of a legal status already established in another Member State (see para. 40 of the judgment). Yet the case was not entirely internal. The applicant had exercised free movement by residing in Italy, where she underwent hormone therapy and formed a stable relationship with an Italian national. Still, the cross-border element remained comparatively thin. The dispute itself concerned the amendment of Bulgarian civil-status records rather than mutual recognition of a status already created abroad. Furthermore, the domestic legal context was shaped by the Bulgarian Constitutional Court’s interpretative decision of 26 October 2021, which held that the constitutional concept of “sex” must be understood exclusively in a biological sense.

A cautious doctrinal route

In her earlier VerfBlog analysis of the Advocate General’s Opinion, Alina Tryfonidou highlighted the careful doctrinal strategy underlying the case. Rather than imposing a general obligation on Member States to introduce gender recognition procedures, the Advocate General, Jean Richard de la Tour, adopted a more limited approach. EU law requires identity documents to enable the effective exercise of free movement. If those documents cannot reflect a person’s gender identity without amending civil-status records, Member States must allow such amendments where necessary for the exercise of EU citizenship rights.

This “minimal intrusion” logic is reflected in the judgment itself. The Court reiterates that matters of civil status remain within Member State competence. However, Member States must exercise that competence consistently with EU law when national rules affect the practical conditions under which Union citizens exercise their mobility rights (paras 37–39, 47 of the judgment).

The Court further reinforced its reasoning by drawing heavily on Strasbourg jurisprudence. Referring to Article 8 ECHR and the European Court of Human Rights’ case law on gender identity, it emphasised that States must provide accessible procedures for legal gender recognition. Bulgaria had already been criticised in ECtHR judgments such as Y.T. v Bulgaria (2020) and P.H. v Bulgaria (2022) (paras. 49-52 of the judgement).

This reliance on Strasbourg allows the Court to situate its intervention within a broader European human-rights framework rather than presenting it as a purely EU-law innovation.

The shadow of McCarthy

Despite this cautious framing, the judgment still raises questions about the limits of EU citizenship. The relatively weak cross-border element inevitably invites comparison with McCarthy (C-434/09, 2011), where the Court rejected the application of EU law to a purely internal situation.

Formally, Shipov is distinguishable because the applicant had exercised free movement by residing in Italy. Yet the case still pushes EU citizenship into terrain where the cross-border element is more contextual than structural. The Court justifies its intervention by emphasising the role of identity documents as instruments of mobility. Discrepancies between a person’s lived gender identity and official documents may create practical obstacles when interacting with authorities, employers, or service providers across Member States.

Nevertheless, the judgment might have benefited from a clearer explanation of why such a comparatively thin cross-border element suffices. Without such clarification, the decision risks appearing difficult to reconcile with the stricter logic of earlier “purely internal situation” cases. The Court’s reasoning may therefore be understood as subtly recalibrating the threshold for the cross-border element required to trigger EU citizenship protections. Rather than demanding a fully developed cross-border legal status, the Court appears willing to intervene where national rules risk undermining the practical usability of identity documents across Member States. Whether this approach represents a pragmatic evolution of citizenship jurisprudence or a more controversial expansion of EU judicial authority will likely remain a subject of debate.

Why the Court chose citizenship rather than equality

Another striking feature of Shipov is the legal pathway chosen by the Court. The dispute concerns gender identity – an issue that might naturally fall within anti-discrimination law. Yet the Court does not rely on the Framework Equality Directive 2000/78/EC or on the equality provisions of the Treaties. Instead, the judgment relies on Article 21 TFEU (the fundamental right to move and reside freely within the EU), Directive 2004/38/EC (EU Citizens’ Rights Directive), and Article 7 of the Charter of Fundamental Rights of the European Union (respect for private and family life).

This choice is constitutionally significant. Anti-discrimination protection under Article 19 TFEU typically requires legislative harmonisation, whereas free movement provisions operate directly. By framing the case through citizenship and mobility rather than equality law, the Court relies on one of the Union’s strongest constitutional tools.

From market citizenship to sexual citizenship

The broader significance of Shipov becomes clearer when placed within the evolving constitutional narrative of EU citizenship. Over the past two decades, the Court has increasingly relied on citizenship and free movement to address questions of family status and sexual identity, areas traditionally considered matters of national competence.

Shipov extends this logic to gender identity. The case illustrates what I have previously described as the emergence of EU sexual citizenship – a constitutional development in which EU citizenship becomes a vehicle for recognising sexual and gender identities across the Union. Rather than relying primarily on anti-discrimination law or harmonisation under Article 19 TFEU, the Court increasingly uses citizenship as the doctrinal gateway for protecting these identities. From this perspective, EU citizenship increasingly operates not only as a market-based status but also as a normative framework that shapes the recognition of personal identity across Member States. By addressing issues of family status, sexual orientation, and gender identity through the lens of mobility rights, the Court gradually constructs a constitutional space in which certain aspects of personal identity become indirectly protected by EU law.

Conclusion

Technically, Shipov may appear to be a free movement case. In reality, it forms part of a broader constitutional evolution. By linking gender identity to the effectiveness of EU citizenship, the Court further expands the role of Union citizenship as a vehicle for protecting personal identity and dignity. More broadly, the judgment reflects a recurring tension within EU citizenship jurisprudence: while matters of personal status formally remain within the competence of Member States, they increasingly become subject to EU constraints when they affect the practical conditions under which Union citizens exercise their rights of movement and residence. Questions of names, family relations, and now gender identity thus appear less as purely domestic matters and more as elements of the legal infrastructure that allows EU citizenship to function in practice.

Whether this development represents a cautious doctrinal adjustment or a more ambitious constitutional shift remains open to debate. What is clear, however, is that EU citizenship is increasingly shaping the recognition of sexual and gender identities across the Union – even where the cross-border element remains comparatively modest.

The post Sexual Citizenship via Free Movement appeared first on Verfassungsblog.

US Supreme Court grants emergency relief in California gender identity case

Leave a reply

US Supreme Court grants emergency relief in California gender identity case

The Supreme Court on Monday granted emergency relief to parents challenging California school policies on student gender identity, allowing a district court injunction to take effect while litigation continues in the United States Court of Appeals for the Ninth Circuit.

In an unsigned per curiam opinion, the Court held that the Ninth Circuit’s stay of the injunction was not justified under the governing four-factor test. It found that the parents, particularly those seeking religious exemptions, are likely to succeed on the merits “of their Free Exercise Clause claim.” It further noted that the nondisclosure rules are likely trigger strict scrutiny because they substantially interfere with “the right of parents to guide the religious development of their children.” The Court concluded that parents asserting due process claims are likely to prevail, citing longstanding precedent recognizing parental authority over children’s upbringing and education.

In a dissent, Justice Elena Kagan, joined by Justice Ketanji Brown Jackson, argued that the Court intervened prematurely while the case is still developing in the lower courts: “If nothing else, this Court owes it to a sovereign State to avoid throwing over its policies in a slapdash way, if the Court can provide normal procedures.” Justice Amy Coney Barrett, joined by Chief Justice John Roberts and Justice Brett Kavanaugh, indicated that she would have granted relief to the teacher plaintiffs.

The split decision follows a legal battle between religious parents and educators in California. Two sets of Catholic parents, represented by the Thomas More Society, challenged state school policies which prevent schools from disclosing students’ gender identities to their families, arguing that they violate the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Due Process Clause. The plaintiffs stated that these policies misled them and secretly facilitated the children’s social transition. In contrast, California argued that students have the right to privacy regarding their gender expression, particularly if they fear rejection from their families. The state asserted that its school policies and state law are designed to strike a balance between parents’ rights and the students’ need for privacy.

The case will return to the Ninth Circuit while the district court’s injunction remains in effect for the parent class.

The post US Supreme Court grants emergency relief in California gender identity case appeared first on JURIST – News.

New SOGIESC publication: ‘Queering Courts’

Leave a reply

New SOGIESC publication: ‘Queering Courts’

The monograph ‘Queering Courts’ is now also available outside of the Low Countries through Amazon (https://www.amazon.com/Queering-Courts-Analysing-marriage-European/dp/B0GK94TXKJ/ref=sr_1_1.

New SOGIESC publication: ‘Queering Courts’

With the use of queer legal theory, ‘Queering Courts’ analyses how courts such as the European Court of Human Rights, the Court of Justice of the European Union, and the United States Supreme Court interpret and apply the notions of ‘sex’, ‘gender’, ‘sexuality’ and ‘sexual orientation’ in their equal marriage rights case law.

The research reveals that courts interpret the notions as binary constructs with the dominance in the hierarchies commonly anchored on certain heteronormative beliefs. This results in the discrimination, non-inclusivity and ‘othering’ of all that do not fall within the dominant part of the hierarchies, making them thus ineligible to enjoy ‘full’ or ‘equal’ marriage rights. While the decision-making of the courts is influenced by factors such as history, culture, religion, politics, etc., judicial self-restraint is oftentimes exercised for credibility, legitimacy, and authority reasons. The research suggests that courts should ‘queer’ their approaches for more inclusive, diverse, and universal adjudication. Until then, the enjoyment of full equal marriage rights is only for the heterosexually privileged.

– Dr Alina Tryfonidou: “Queering Courts is an exceptional and timely contribution to the literature on the equal marriage rights of same-sex couples. Dr. Shahid offers a masterful and crystal-clear analysis of the jurisprudence of three major courts – the ECtHR, the CJEU and the US Supreme Court – engaging rigorously with their case law while illuminating, through the lens of queer legal theory, how these courts understand and deploy the concepts of sex, gender, sexuality and sexual orientation. Written in crisp, accessible language and grounded in original scholarly insight, this book provides a refreshing, innovative and genuinely enlightening perspective. A delight to read and a significant intervention in the field.”

US appeals court upholds school’s policy to use preferred pronouns

Leave a reply

US appeals court upholds school’s policy to use preferred pronouns

The US Court of Appeals for the Fourth Circuit ruled last Wednesday that
Montgomery County, Maryland, could require teachers to use students’
preferred pronouns and prohibit teachers from sharing information about
gender identity with parents.
The 2-1 opinion, written by Judge Robert Bruce King, held that the school
board’s policy requiring teachers to use the preferred pronouns of
students and not discuss gender information with parents did not violate
the plaintiff’s First Amendment rights. The plaintiff, Kimberly Ann Polk,
was a substitute teacher in Montgomery County and argued that her
Christian beliefs prohibited her from using a student’s pronouns that are
different from their biological sex. She claimed the board’s policy
violated her right to freedom of religion. The Court of Appeals, however,
found that the school board’s policy was “neutral” and of general
applicability. As such, the board’s goal of preventing discrimination and
protecting student safety was sufficient to overcome any burden on Polk’s
religion.
Plaintiff Polk also asserted the policy violated her free speech rights
by “compelling her, on condition of continued employment, to communicate
misleading messages to parents.” The Court of Appeals similarly disagreed
with this argument by stating that communicating with students and parents
is part of a teacher’s official duties. Because of this, Polk was not
acting as a private speaker when adhering to this policy, but rather a
government employee. The court ruled that, in her capacity as a teacher
and government employee, Polk did not have the First Amendment right not
to follow the policy.
This decision upholds the lower court’s dismissal of Polk’s free speech
and religion claims. Polk also asserted that the school board violated the
Civil Rights Act of 1964 by denying her a religious accommodation to the
policy. This law prohibits employers from failing or refusing “to hire or
to discharge any individual, or otherwise to discriminate against any
individual” because of their religion. The Fourth Circuit again upheld the
lower court’s denial of an injunction for this because Polk’s alleged
harms that would justify the injunction were the violation of her
constitutional rights. Because the court dismissed her First Amendment
claims, Polk could not argue her rights were violated.
This case comes against the backdrop of a divided judiciary on
transgender issues. A federal judge in California found last month that
schools cannot bar teachers from telling parents their children are
transgender. The Ninth Circuit Court of Appeals has temporarily blocked
this ruling.
The post US appeals court upholds school’s policy to use preferred
pronouns appeared first on JURIST - News.

Source: https://www.jurist.org/news/2026/02/us-appeals-court-upholds-schools-policy-to-use-preferred-pronouns/