Can a Member State of the European Union refuse to recognize one of its citizens’ gender change obtained in another EU country? No, European justice responded with a judgment handed down on Friday October 4, which clearly settles the dispute between a Romanian citizen and the authorities in Bucharest.
The refusal “to record in the birth certificate of a national the change of first name and gender identity legally acquired in another Member State is contrary to Union law”specifies the press release from the Court of Justice of the European Union (CJEU) to justify a landmark decision.
A Romanian born female who became a man in the UK
The CJEU was seized by a court in Bucharest following the complaint filed by Arian Mirzarafie-Ahi to challenge the rejection by the Romanian justice system of his request for registration, in his birth certificate, of the change of first name and sex already acquired in the United Kingdom.
Born a woman in 1992 in Romania, the complainant moved in 2008 and acquired British citizenship to request, in 2017, to change his first name and gender, which he obtained in 2020 in legal recognition of his gender change.
Everything became complicated for him in May 2021 when he asked the Romanian authorities to register these new mentions in the civil registry. In June, they notified him of a refusal on the grounds that a change of gender identity can only appear in the birth certificate if it has been approved by a decision of the Romanian justice.
Free movement, a right for everyone, everywhere in the Union
Arian Mirzarafie-Ahi then decides to refer the matter to the Bucharest court, which in turn turns to European justice to ask whether the refusal of the Romanian authorities is in accordance with Union law and whether, in passing, Brexit has an impact on the dispute.
On these two points, the CJEU’s ruling could not be clearer. While recognizing that each Member State is competent to set the rules relating to gender change, the Court recalls that all are required to respect Union law which guarantees citizens a fundamental freedom: that of being able to move and reside freely on the entire territory of the Member States.
However, the judgment specifies, “the refusal to recognize the change of identity” constitutes a “impediment” to this right, the divergence between two identities creating “difficulties and serious professional, administrative and private inconveniences”. It further specifies that asking the complainant to initiate a new procedure cannot guarantee him the exercise of this freedom given the risk that “this leads to a different result” of that obtained in the United Kingdom.
A “historic” decision for activists
Across the Channel, the procedure of « Dee Poll » allows British citizens to change their first name upon simple declaration. Romania is one of three countries – with Cyprus and Bulgaria – not to have legislated on the issue and is often singled out by defenders of the rights of sexual minorities for its very conservative positions on this subject.
As for the Brexit argument, the CJEU brushes it aside, noting that the change had been obtained before the withdrawal of the United Kingdom from the Union and that, as a result, the application of European law could not not be contested.
“I cried when I heard the news. It’s a victory I’ve been waiting for for years.”reacted the 32-year-old biology professor, commenting on the shutdown by videoconference from the United Kingdom. In Bucharest, the Accept association which assisted him in his legal fight welcomed “a historic decision for transgender people”.