Court of Justice of the European Union: the gender of trans people in national registers must be corrected

According to the judgment rendered by the CJEU, the GDPR obliges Hungarian authorities to correct personal data on gender identity where it is inaccurate, i.e. in all cases where the social reality and gender identity of trans people differs from their sex at birth. The absence of a procedure for legal gender recognition does not exempt Hungary from its obligations under EU law.

As previously reported, on March 29, 2023, the Budapest-Capital Regional Court requested a preliminary ruling from the CJEU in a pending case of a trans man who was recognised as a refugee in 2014 and has been living in Hungary since then. In 2021, our client submitted a request to the National Directorate-General for Aliens Policing (OIF) to change his gender marker and name with reference to his right contained in Article 16 of the EU General Data Protection Regulation (GDPR). Following OIF’s refusal, he challenged the decision before the court with the help of Háttér Society and the Hungarian Helsinki Committee. 

In the preliminary ruling procedure, the Budapest-Capital Regional Court sought guidance from the CJEU on three questions. First, whether the GDPR mandates the rectification of the gender marker on national registries upon request; second if so, does this request require evidence? Third, if it does, does it need to include proof of surgical intervention? The European Court of Justice held a hearing on the case on June 3, 2024 and the Advocate General published his opinion on September 12, 2024.

The judgment rendered by the CJEU this Wednesday expressly states: the GDPR obliges the Hungarian authorities to correct personal data on gender identity where it is inaccurate, i.e. in all cases where the social reality and gender identity of trans people differs from their sex at birth. The authorities cannot rely on the fact that trans people have not had the possibility of legal gender recognition, i.e. the possibility to change their gender marker and name, under Hungarian law since May 2020. The current Hungarian legislation is incompatible with EU law, as it prevents transgender people from exercising their right to the protection of personal data, including the right to rectification of the gender marker to be in line with their gender identity. A request for rectification may need to be supported by evidence reasonably required to establish inaccuracy, but importantly, the authorities “may not in any circumstances make the exercise of this right (…) conditional on the submission of evidence that a gender reassignment surgery has been carried out.”

The procedure before the CJEU is an important milestone in the Hungarian fight for the recognition of trans identities. To date, the Hungarian legislator failed to comply with the 2018 decision of the Constitutional Court in a similar case and the June 2020 judgment of the European Court of Human Rights. 

According to Gábor Győző, the attorney representing the client in the proceedings on behalf of Háttér Society and the Hungarian Helsinki Committee, “it is very important and welcomed that the Court not only addressed the specifics of the case, but also assessed the Hungarian legal framework and the protection of the rights of trans people in a broader context. Moreover, this decision also serves as a guideline for all other Member States on this issue.”

“Trans people have been subject to constant governmental harassment in recent years. The judgment is a ray of hope that they cannot be deprived of their rights and denied their existence,” added Eszter Polgári, Director of the Legal Program of Háttér Society. 

The CJEU’s decision raises serious questions, especially in the context of the amendment to the Fundamental Law tabled by the governing parties on Tuesday. According to the amendment’s explanatory memorandum, its aim is to “prevent efforts that suggest the possibility of changing the sex of birth.” However, the CJEU ruling clearly obliges Hungary to ensure the possibility to change the gender marker in public registers.