Provisional text
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 4 September 2025 (1)
Case C‑43/24 [Shipov] (i)
K. M. H.
v
Obshtina Stara Zagora
(Request for a preliminary ruling from the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria))
( Reference for a preliminary ruling – Citizenship of the Union – Article 21(1) TFEU – Articles 7 and 45 of the Charter of Fundamental Rights of the European Union – Right to move and reside freely within the territory of the Member States – Obstacles – Request to change the particulars in the civil status documents of a transgender person – No national procedure – Absence of a certificate established in another Member State – Obligation on the part of that Member State to recognise and enter in the birth certificate the change of gender identity and subsequent changes – Directive
2004/38/EC – Article 4 – Obligation to issue identity documents consistent with the person’s
lived gender identity )
I.      Introduction
1.        The request for a preliminary ruling has been made in proceedings brought by K. M. H. against the Obshtina Stara Zagora (municipality of Stara Zagora, Bulgaria) for the purpose of obtaining a judgment declaring his change of sex by ordering that his name be changed (2) and that that change be entered in his birth certificate.
2.        This reference for a preliminary ruling therefore concerns the recognition and civil registration, by the authorities of a Member State which have competence to amend his birth certificate, of the transgender identity of a person who is a national of that Member State. Although that person has exercised his freedom to move and reside in another Member State, the purpose of his request is not recognition of a change of an aspect of his identity which has been lawfully acquired in another Member State.
3.        As regards civil registration, until the judgment of 4 October 2024, Mirin, (3) the case-law of the Court developed only within the framework of recognition by a Member State of the effects of an act or decision obtained in another Member State and principally on the basis of the right of Union citizens to move and reside freely within the territory of the Member States, laid down in Article 21 TFEU, while recalling that EU law does not detract from the competence of those States in the area of civil status.
4.        Moreover, in that line of case-law, as regards the recognition of legal links, the Court made a point of stating expressly that the recognition by a Member State of an established legal situation in another Member State does not require the first Member State in which that situation produces effects provided for in EU law to amend its legislation on the status of persons. (4) Lastly, in other areas, the Court has emphasised the competence of the Member States in the matter of legal gender identity recognition. (5)
5.        In the case which gave rise to the judgment in Mirin, a national procedure for changing gender identity existed in the Member State of which the person was a national. (6) That is not the situation in the present case, since the Member State of which the person is a national is firmly opposed to the recognition of changes in gender identity.
6.        The request for a preliminary ruling therefore asks the Court to rule on the compliance with EU law of the legislation of a Member State, as interpreted by the national courts, which does not recognise the change in gender identity of one of its nationals or its consequences where that change in gender identity was not legally established in another Member State. (7) In so far as it relates to the competence of the Member States as regards the status of persons, there is a lot at stake.
7.        Therefore, the Court will have to determine how the situation in the main proceedings falls within the scope of EU law, what impediment to the exercise of rights may be relied on by the person concerned, and whether that impediment can be justified.
8.        I will set out the reasons why the Court may take the view, in the light of certain provisions of EU law, that a Member State is required to remove the obstacles to the freedom of movement and residence created by the absence in that Member State of legal recognition of gender identity lived by one of its nationals by amending his birth certificate and identity documents, even without the legal establishment of a change of gender identity obtained in another Member State.
II.    Legal framework
A.      European Union law
9.        In this Opinion, I will refer to Article 20 and Article 21(1) TFEU, Articles 7 and 45(1) of the Charter of Fundamental Rights of the European Union, (8) and Article 4(3) of Directive 2004/38/EC. (9)
B.      Bulgarian law
1.      Law on the register of civil status
10.      Under Article 1(2) of the Law on the register of civil status, in the version applicable to the dispute in the main proceedings:
‘Civil registration shall mean the recording of the events of birth, marriage and death in the civil status registers of civil status documents and recording of persons in the population register.’
11.      Article 2(1) of that law provides:
‘The civil registration of individuals in the Republic of Bulgaria shall be based on the data in their civil status documents and the data in other documents specified by the law.’
12.      Article 3 of that law states:
‘1.      The registers of civil status documents shall keep record of the events under Article 1(2), concerning all persons who at the time of occurrence of the event are Bulgarian citizens and persons other than Bulgarian citizens who at the time of occurrence of the event are on the territory of the Republic of Bulgaria.
2.      The population register shall keep record of:
1.      all Bulgarian citizens;
… [(10)]’
13.      According to Article 8(1) of that law, the main civil registration data of a person must include the person’s name, sex, nationality and personal identification number.
14.      Article 9(1) of the Law on the register of civil status states:
‘The name of a Bulgarian citizen born in the territory of the Republic of Bulgaria shall consist of a first name, a patronymic and a surname. The three components of the name shall be entered in the birth certificate.’
15.      Article 13 of that law provides:
‘The patronymic of a person shall consist of the father’s first name and be written with the suffix -ov or -ev and an appropriate gender inflection according to the sex of the child, except where such endings cannot be attached to the father’s first name or they are contrary to the parents’ family, ethnic or religious traditions.’
16.      Article 14(1) of that law states:
‘A person’s surname shall be the father’s surname or patronymic with the suffix -ov or -ev and an appropriate gender inflection according to the sex of the child, except where the parents’ family, ethnic or religious traditions require otherwise.’
17.      Article 19(1) of that law is worded as follows:
‘Changes to a person’s first name, patronymic or surname may be allowed by the court when requested in writing by the person concerned where the name is ridiculous, dishonourable or socially unacceptable or there are other compelling circumstances.’
18.      Under Article 45(1), points 6 to 8, of the Law on the register of civil status, the birth certificate must contain the name of the newborn, the child’s personal identification number (only for Bulgarian citizens) and the sex and nationality.
19.      Article 73 of that law provides that the amendment of data relating to the civil status of persons entered in
established civil status records must take place by way of judicial or administrative procedure.
20.      In accordance with Article 76(5) of that law, a person’s name and sex must be amended by the courts.
21.      According to Article 100 of that law, the Unified System for Civil Registration and Administrative Service of the Population (ESGRAON) is a national system for civil registration of natural persons in the Republic of Bulgaria and a source of personal data thereof.
22.      Under Article 101, points 1 to 4, of the Law on the register of civil status:
‘The ESGRAON shall have the following functions:
1.      establish and maintain registers of civil status records;
2.      establish and maintain a national electronic register of civil status records;
3.      establish and maintain a population register;
4.      establish the system for creating and allocating the unique administrative identifier (personal identification number) of natural persons, and establish and maintain the register of personal identification numbers.’
2.      The Law on Bulgarian identity documents
23.      According to Article 4(1) of the Zakon za bulgarskite lichni dokumenti (Law on Bulgarian identity documents), (11) of 1 April 1999, in the version applicable to the dispute in the main proceedings, every Bulgarian national has the right to an identity document.
24.      Article 9(1) of that law provides:
‘In the event of a change of name, personal identification number (personal number/foreign national’s personal number), sex, nationality or substantial and lasting change of appearance, the person is required to request new Bulgarian identity documents within a maximum period of 30 days.’
25.      Article 13(1) of that law lists the types of identity documents. They include an identity card, passport and driving licence.
26.      Under Article 16(1) of that law, the names, date of birth, personal identification number, sex and nationality of the person concerned must appear in the identity documents. Paragraphs 2 and 6 of that article state that the passport and identity card must also contain biometric data.
27.      Paragraph 16(1) of the supplementary provisions of the Law on Bulgarian identity documents adds that the biometric data in question are the facial image of the citizen and his or her fingerprints.
III. Facts of the main proceedings and the questions referred for a preliminary ruling
28.      K. M. H. is a person born on 7 August 1990 in Bulgaria who was registered at birth as of male gender, with a name consisting of a first name, a patronymic and a surname (12) corresponding to that gender. He was also assigned a personal identification number and issued with an identity document, which also identify him as being a person of the male sex. However, K. M. H. maintains that she (13) ‘always felt herself to be a woman in terms of appearance, behaviour, perception, emotions and conduct’, (14) even in childhood.
29.      That person is currently living in Italy and has a long-term partner (15) who pays for her keep. She has started hormone therapy enabling her to present herself as a woman and wishes to undergo gender reassignment surgery, a process which entails a change of civil status. The discrepancy between her appearance and her behaviour as a person of the female sex, on the one hand, and the fact of having official identity documents, including her identity card, of a person of the male sex, on the other hand, causes problems she encounters on a daily basis, in particular when looking for work.
30.      Therefore, during 2017, K. M. H. applied to the Rayonen sad Stara Zagora (District Court, Stara Zagora, Bulgaria), on the basis of the Law on the register of civil status, for a declaration that she is a person of the female sex and for an order that her name be changed from K. M. H. (male first name, patronymic and surname) to K. M. H. (female first name, patronymic and surname) and that that change appear in the birth certificate which was issued to her.
31.      That court, which obtained various medical opinions and a legal expert’s report confirming K. M. H.’s statements relating to her claimed gender identity, dismissed her application on 28 February 2018. It accepted that K. M. H. is a transgender person and found that that application for recognition of her change of gender identity (16) is an expression of free will and an informed choice. However, it considered that the legal criterion for upholding that application under Article 73 of the Law on the civil status register, read together with Article 19 thereof, had not been met. It found that Bulgarian objective law does not provide for the possibility of amending the facts established in a civil status document on psychological bases.
32.      That decision was upheld on appeal by the Okrazhen sad Stara Zagora (Regional Court, Stara Zagora, Bulgaria), on 15 June 2018, on the grounds that, first, the Bulgarian legislature provided for the registration of the sex determined at birth on the basis of primary sexual characteristics. It is not possible to authorise a change of gender unless this is necessary on account of a physical change. Second, the provisions of the Law on the register of civil status are perfectly clear and leave no room for any other interpretation. Lastly, it is for the State, acting in its legislative capacity, to adopt measures to ensure respect for the private and family life of its citizens, in accordance with the rule laid down in Article 8 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms, (17) which is directly applicable.
33.      On appeal authorised by order of 7 February 2019, the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria) held, by decision of 28 June 2019, that, notwithstanding the absence of any relevant national legislation, the principle of respect for private and family life requires the court to examine on a case-by-case basis whether the material conditions for a change of a person’s gender identity as the prerequisite for a legal change to the civil status particulars concerning ‘gender’ in a person’s birth certificate are met, so that the necessary appropriate balance between the public interest and the private interest can be struck in the light of Article 8 ECHR. It decided to refer the case back to the Okrazhen sad Stara Zagora (Regional Court, Stara Zagora), directing it to gather new evidence relating to K. M. H’s medical situation.
34.      By a decision of 21 November 2019, that court, which obtained a second expert’s report confirming that K. M. H. is a transgender person, again dismissed her application for a change of civil status, reiterating the reasons for its initial decision founded on the absence of a procedure for recording ‘psychological gender’ in a birth certificate.
35.      K. M. H.
appealed against that decision before the Varhoven kasatsionen sad (Supreme Court of Cassation). That appeal was allowed on 26 June 2023 on the ground of the incompatibility of that decision with
the judgment of 30 April 1996 in P v S (18) relied on by K. M. H. in relation to the following legal questions which are the subject of the dispute, summarised by the referring court as follows: ‘Do natural persons have the right to determine their own identity, including the particular gender to which they belong? Does the court’s refusal to order a change to the gender, name and personal identification number recorded in the civil status documents of an applicant who states that he or she is transsexual constitute unequal treatment?’
36.      That procedure had been reopened after the General Assembly of Civil Chambers of the Varhoven kasatsionen sad (Supreme Court of Cassation) adopted its Interpretative Decision No 2/2020 of 20 February 2023, (19) which is binding on all judicial and administrative authorities, including the formations of the Varhoven kasatsionen sad (Supreme Court of Cassation). It was held, (20) in answer to the question whether the conditions for a change to the data in the civil status records of a person who states that he or she is transgender arise from Article 8 ECHR, first, that the substantive law in force in Bulgaria does not provide for any possibility to authorise a change to the particulars concerning gender, name and identification number recorded in the civil status documents in such a case. Second, EU law does not require any other conclusion to be drawn, since rules on civil status fall within the competence of the Member States. Lastly, that decision is based on a Judgment No 15, of 26 October 2021, of the Konstitutsionen sad (Constitutional Court, Bulgaria), from which it is clear that the term ‘gender’ in the Constitution is to be understood exclusively in the biological sense and that the public interest outweighs the interest of transgender persons, by virtue of the moral and/or religious rules and principles underlying the conceptions and values established in society, the stability and continuity of which must be ensured. In that regard, the impact of changing the birth certificate of a person who states that he or she is ‘transsexual’ on the civil status of other persons, including minors and those without legal capacity, such as the applicant’s children, as well as his or her spouse, is emphasised in that judgment.
37.      The Varhoven kasatsionen sad (Supreme Court of Cassation) nonetheless has doubts about the interpretation adopted in the interpretative decision. First, it asserts, referring to Article 8 ECHR and Article 9 TEU, that discrimination within the meaning of those provisions is constituted if the scope of national law prohibiting discrimination based on gender was limited to transsexual and other persons for certain medical reasons. It also mentions identical or similar cases treated differently in other Member States, in order to rely on an infringement of the right to a fair trial of Bulgarian transgender persons.
38.      Second, that court asks whether the prohibition on a legal change to the particulars contained in a person’s birth certificate infringes the principles of the equality of citizens of the Union and freedom of movement, enshrined in Article 8 and Article 21 TFEU, ‘which are reinforced by Article 7 of the Charter and Article 8 ECHR’, since the persons concerned are unable to provide proof of their identity by means of their identity documents, in which they are recorded as being of the opposite sex.
39.      Lastly, that court considers that it is for the Court of Justice to assess whether a binding interpretation of the Constitution, given by a decision of the Konsitutsionen sad (Constitutional Court, Bulgaria) according to which the term ‘gender’ is to be understood only in the biological sense, is compatible with the requirements of EU law and is capable of constituting a legal impediment to the recognition of gender identity in civil status documents.
40.      In those circumstances, the Varhoven kasatsionen sad (Supreme Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)      Do the principles of the equality of Union citizens and freedom of movement enshrined in Article 9
[TEU] and in Articles 8 and 21 [TFEU], and reinforced in Article 7 of the [Charter] and Article 8
[ECHR], preclude national legislation of a Member State which rules out any possibility of amending the entry concerning gender, name and identification number … contained in the civil status documents of an applicant who states that he or she is [a transgender person]?
(2)      Do the principles of the equality of Union citizens and freedom of movement enshrined in Article 9
[TEU] and in Article 8 and Article 21 [TFEU], and the prohibition of discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation laid down in Article 10 TFEU, which are reinforced in Article 7 of the [Charter] and Article 8
[ECHR], and the principle of an effective remedy, preclude national case-law (in casu, the [interpretative decision]) to the effect that the material law applicable in the territory of a Member State of the European Union does not provide for any possibility of changing the gender, name and identification number recorded in the civil status documents of an applicant who states that he or she is [a transgender person], thereby placing him or her in a position different from that in which he or she would be in another Member State under whose case-law the opposite is the case?
Is it permissible for national case-law, on the basis of religious values and moral principles, not to permit a change of gender identity unless it is required by certain – intersex – persons for medical reasons?
Is it permissible for national case-law, on the basis of religious values and moral principles, to permit a change of gender for medical reasons only in certain cases and for certain (intersex) persons, but not in other cases of a change of gender identity for other, different medical reasons?
(3)      Does the obligation of the Member States of the European Union to recognise a person’s civil status as established in another Member State under the law of that State, which is recognised in the case-law of the European Court of Justice … in relation to the application of Directive [2004/38] and Article 21(1) TFEU [in accordance with the judgment of 5 June 2018, Coman and Others (C‑673/16, EU:C:2018:385)), and [the judgment in Pancharevo]], also apply in relation to gender as an essential element of the civil status entry, and does a change of gender, established in another Member State, on the part of a person who also has Bulgarian nationality, require that fact to be recorded in the corresponding registers of the Republic of Bulgaria?
(4)      Is a binding interpretation of the [Bulgarian] constitution by a judgment of the Konstitutsionen sad [(Constitutional Court)] to the effect that the term ‘gender’ is to be understood exclusively in the biological sense, permissible in the light of the right to a fair trial arising from the Charter and the ECHR; is that interpretation compatible with the requirements of EU law; and is it capable of constituting a legal impediment to the registration of a change of gender?’
41.      The referring court replied on 27 May 2024 to a request for information from the Court of Justice.
42.      Written observations have been submitted by K. M. H., the Estonian, Hungarian, Netherlands and Portuguese Governments and by the European Commission. K. M. H., the Bulgarian and Netherlands Governments and the Commission participated at the hearing held on 22 May 2025, during which they also replied to the questions put by the Court for an oral answer.
IV.    Analysis
43.      As a preliminary point, I note that, although the first question for a preliminary ruling concerns the national legislation which excludes the civil registration of transgender identity, the other questions
concern the national case-law according to which the interpretation of that legislation does not permit the civil status of a transgender person to be changed.
44.      In that regard, the referring court seeks, in essence, to ascertain whether the provisions of EU law on the equality of EU citizens, their freedom to move and reside within the territory of the Member States, prohibition of discrimination and effective judicial protection, those rights being enshrined in the Charter, preclude national legislation and the national courts’ interpretation of it from not permitting the ‘change of gender identity’ (21) of a Bulgarian national for the purposes of registering that identity in his or her birth certificate and identity documents, even without having undergone gender reassignment surgery.
45.      Since that request for a preliminary ruling relates to a dispute between a Bulgarian national and the Bulgarian authority responsible for civil status registration which does not concern recognition of an act or decision registered in another Member State, the justification for the Court assuming jurisdiction must be determined. (22)
46.      In my view, it is sufficient to note that K. M. H.’s situation falls within the scope of Article 21(1) TFEU. (23) As a Bulgarian national, (24) K. M. H. has exercised her right of free movement in another Member State, namely the Italian Republic. She wishes to reside, work and move freely within the territory of the Member States under an identity resulting from the legal recognition in her Member State of origin of her gender identity and to secure her family life with her Italian partner. The Republic of Bulgaria has sole competence to issue K. M. H. with an identity card or passport indicating her nationality.
47.      K. M. H. may therefore rely in particular on the primary and individual right to move and reside freely within the territory of the Member States conferred on each Union citizen in accordance with Article 20(2)(a) and Article 21(1) TFEU, subject, according to the latter provision, to the limitations and conditions laid down in the Treaties and in the measures adopted for their implementation. (25) In that regard, the purpose of Directive 2004/38 is, inter alia, to lay down the conditions for the exercise of those rights and the limitations on them. (26) In particular, it provides in Article 4(3) thereof for the issue of
an identity card or passport.
48.      As regards the referring court’s questions
and, first, the first two questions, I note that that court sent its request for a preliminary ruling and its reply to the request for information made by the Court before the delivery of the judgment in Mirin relating to the entry in the birth certificate of a Union citizen of a change of his first name and gender identity by the competent authority of the Member State of which that citizen is a national. The Court held that ‘Article 20 and Article 21(1) TFEU, read in the light of Articles 7 and
45 of the Charter, must be interpreted as precluding legislation of a Member State that does not permit recognition and entry in the birth certificate of a national of that Member State of a change of first name and gender identity lawfully acquired in another Member State, when exercising the right to free movement and residence, with the consequence that that person is obliged to initiate, before a court, new proceedings for a change of gender identity in the first Member State, which disregard the change that was previously lawfully acquired in that other Member State’. (27)
49.      Nonetheless, there is an important difference between the case which gave rise to the judgment in Mirin and the present case, namely the absence in the present case of a change of gender identity lawfully acquired in another Member State. Therefore, the first and second questions for a preliminary ruling remain relevant.
50.      Second, although the judgment in Mirin may allay the doubts expressed by the referring court in its third question for a preliminary ruling, that question is inadmissible, since it is irrelevant to these proceedings and is therefore hypothetical. K. M. H. has not obtained any judicial or administrative decision in Italy, where she resides, as follows from the referring court’s answer to the Court’s request for information.
51.      Lastly, I consider that the fourth question for a preliminary ruling may be understood as asking whether the referring court is unable to interpret a national provision in accordance with EU law solely because that provision was interpreted by the Konsitutsionen sad (Constitutional Court) in a manner incompatible with that law. According to the settled case-law of the Court, the question must be answered in the negative.
52.      The Court held, first, that the national court, having exercised the discretion conferred on it by the second paragraph of Article 267 TFEU, must, if necessary, disregard the rulings of the higher court if it considers, having regard to the interpretation provided by the Court, that they are not consistent with EU law, if necessary refusing to apply the national rule requiring it to comply with the decisions of that higher court. Second, that solution applies in particular where an ordinary court is bound by a decision of a national constitutional court that it considers to be contrary to EU law. (28)
53.      Therefore,
I propose to focus my analysis on the first and second questions for a preliminary ruling, in so far as they are based on Article 21 TFEU and Article 7 of the Charter, and to examine them together.
54.      Since K. M. H. may rely on Article 21(1) TFEU, certain grounds relied on by the referring court may, in my view, be disregarded,
namely the provisions on equality (Article 9 TEU and Article 8 TFEU), prohibition of discrimination (Article 10 TFEU) and the right to an effective legal remedy (Article 47 of the Charter).
55.      Accordingly, I suggest reformulating the first and second questions for a preliminary ruling. Moreover, in the context of the procedure for cooperation between national courts and the Court of Justice established in Article 267 TFEU and in order to provide the national court with an answer which will be of use to it and enable it to decide the case before it, the Court may find it necessary to consider provisions of EU law which the national court has not referred to in its question. (29)
56.      Therefore, it must be held, having regard to the purpose of the request for a preliminary ruling, (30) that the referring court asks, in essence, whether Article 20 and Article 21(1) TFEU and Article 7 and Article 45(1) of the Charter, read together with Article 4(3) of Directive 2004/38, must be interpreted as precluding national legislation, as interpreted by the national courts, which does not permit its nationals to change their gender identity, even without undergoing gender reassignment surgery, or to permit a change of their name or personal identification number to be legally recognised and entered in their birth certificate, although a change to the statements contained in their identity documents depends on such entry.
57.      In matters of civil status and legal recognition of transgender identity, the Court has already ruled on the obligations of the Member States under EU law in specific circumstances, namely a change of gender identity lawfully acquired in another Member State. (31) The logic underlying that case-law is identical to that relating to names. It is based on the finding that the exercise of the rights conferred by Article 20 and Article 21(1) TFEU is hindered where the identity of a ‘mobile’ Union citizen recognised
in one Member State is different from that which is registered in the Member State of which he or she is a national. (32)
58.      That hindrance justifies setting a limit to the competence of the Member States with regard to personal status. According to the settled-case-law of the Court, as EU law currently stands, a person’s status, which is relevant to the rules on changing a first name, surname and gender identity, is a matter that falls within the competence of the Member States and EU law does not detract from that competence. Nevertheless, in exercising that competence, each Member State must comply with EU law, in particular the provisions of the FEU Treaty on the freedom conferred on all Union citizens to move and reside within the territory of the Member States, by recognising, for that purpose, the civil status of persons that has been established in another Member State in accordance with the law of that other Member State. (33)
59.      However, in the absence of an act or decision lawfully obtained in a Member State other than the Member State of which the person concerned is a national, it is no longer necessary to resolve any difficulties related to the civil status of a person that, merely because that person has exercised his or her freedom to move and reside in another Member State, varies according to the Member States concerned.
60.      The novel question referred to the Court is how to ensure the effectiveness of the exercise of that freedom where the gender identity lived by a Union citizen differs from the gender identity resulting from the indication of that citizen’s gender in his or her birth certificate, which is reproduced in that citizen’s identity card or passport. In the present case, specifically, and as K. M. H. maintains before the national courts, she does not have identity documents enabling her to move, reside and work within the territory of the Member States, without having to give rise to the doubt raised by the discrepancy between the indication of her gender, on the one hand, and her lived gender identity, on the other hand.
61.      Therefore, the question arises as to what can be the basis in EU
law of an obligation on the Member States to legally recognise a change of gender identity of one of their nationals born in their territory.
62.      In the absence of an act or decision established in another Member State, I consider that the scope of Article 21(1) TFEU, as interpreted with regard to the identity of ‘mobile’ Union citizens where that identity varies according to the Member States concerned, cannot be extended to such a situation. To decide on that basis alone, even in the light of Article 7 of the Charter, that a Member State is obliged to legally recognise gender identity would undermine the principle of the competence of Member States in matters of the status of persons and, as a consequence, civil status. Such a decision would ultimately result in unlimited recognition of rights attached to Union citizenship, which is nowhere provided for in the Treaties. Moreover, an interpretation based on Article 45(1) of the Charter is limited by Article 51(2) of the Charter.
63.      I therefore consider, like the Commission that expressed the same view at the hearing, that an answer based on Article 21(1) TFEU, together with Article 4(3) of Directive 2004/38, seems preferable.
64.      It has the fundamental advantage of remaining within the limits and conditions for the exercise by Union citizens of their freedom of movement and residence provided for in Article 21(1) TFEU, which are laid down in Directive 2004/38. (34) Moreover, such an answer may rely on three of the Court’s decisions, namely, first, the judgment in Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date, on the conditions for issuing an identity card that may serve as a travel document within the European Union, and, second, the judgments in Mirin and Deldits, on the entry of transgender identity in public registers.
65.      The Court has stated that the achievement of the area without internal borders offered by the European Union encompasses the right to move and reside freely within the territory of the Member States, conferred directly on every Union citizen by Article 20(2)(a) and Article 21(1) TFEU, the exercise of which Directive 2004/38 aims, according to settled case-law, to facilitate. (35)
66.      Thus, identity cards and passports, which contain in particular a facial image of their holders, serve to identify Union citizens (36) for the purpose, inter alia, of certifying that they benefit from the right to move and reside freely within the territory of the Member States and therefore to exercise that right. (37)
67.      Therefore, although the identity cards and passports issued by the Member State concerned contain an indication of their holder’s gender based on the holder’s birth certificate, the holder’s lived gender identity should then appear in them if it is different from that which was assigned at birth. (38) The first name, surname and, where applicable, personal identification number should also be aligned with the change of gender identity. In that regard, it should be noted that the indication of gender has psychosocial effects, (39) given that they determine male or female gender identity. Accordingly, although, in a specific situation, that indication does not correspond to the lived gender identity of the person concerned, (40) the document submitted as proof of identity (identity card or passport) necessarily gives rise to doubts about its authenticity or veracity. (41)
68.      On that point, as regards the indication of gender in identity cards or passports, I consider it appropriate to make a number of essential clarifications.
69.      A distinction should be drawn between the European legislation on the issue of passports, on the one hand, and identity cards, on the other hand. Passports are governed by Regulation (EC) No 2252/2004. (42) In the case of identity cards, Regulation 2025/1208 is now applicable.
70.      Even though, in both cases, those regulations refer to the recommendations of the International Civil Aviation Organisation (ICAO) (43) and, in particular, to those contained in Document 9303 on machine readable travel documents, (44) some differences should be noted.
71.      As regards passports, in Part 4 of Document 9303, entitled ‘Specifications for Machine Readable Passports (MRPs) and other TD3 Size [(45)] MRTDs [(46)]’, (47) provision is made, in Zone II, containing ‘mandatory and optional personal data elements’, for a Field 11 relating to the sex of the passport holder, in the following form: ‘F for female, M for male, or X for unspecified’. (48) Therefore, according to that provision, the Member States are obliged to provide for a field for including a data element relating to sex. However, they do not have to indicate it. (49)
72.      As regards identity cards, the same requirements relating to the indication of sex
are laid down in Part 5 of Document 9303, entitled ‘Specifications for TD1 Size [(50)] Machine Readable Official Travel Documents (MROTDs)’. (51)
73.      However, in the case of identity cards of Union citizens, Member States may derogate from those requirements, as provided for in the second subparagraph of Article 3(2) of Regulation 2025/1208, read in the light of recital 25 thereof. Thus, in respect of those identity cards, the EU legislature has chosen:
–        to use the term ‘gender’ rather than the term ‘sex’ contained in Document 9303 in order to designate that data element for inclusion in a field of an identity card, and
–        to make the designation by Member States of the ‘gender’(within the meaning of
‘sex’ according to Document 9303) of a person in his or her identity card optional. In other words, Member States are not obliged to include a field relating to gender (or sex) in that document. (52)
74.      It is therefore necessary, for the further analysis of the conditions under which an identity card reflecting the lived gender identity of a transgender Union citizen must be issued to that citizen, to place oneself in the situation where the Member State of which that citizen is a national designates gender (or sex) in identity cards.
75.      In such a case, as in the present case in Bulgaria, (53) the obstacle to the exercise of the right to move and reside freely within the territory of the Member States encountered by a transgender Union citizen results from the issue, by the sole competent authority, namely the authority of that citizen’s Member State of origin, of an identity card mandatorily reproducing the indication of that citizen’s sex shown in his or her birth certificate, although it no longer corresponds to that citizen’s lived gender identity. In those circumstances, that identity document does not serve its purpose, which is to enable its holder to be identified without giving rise to doubts about the authenticity of the documents presented or the veracity of the data contained in them. (54)
76.      That finding should therefore lead the Court to remove a new form of obstacle to a Union citizen’s exercise of the rights guaranteed in Article 21 TFEU and Article 45(1) of the Charter, read in the light of Article 7 thereof. That obstacle results not from the existence of two differing civil status documents concerning the same person, but from the mandatory indication in the identity card of the sex recorded in the birth certificate without there being any possibility of recording in it a different gender identity, namely the lived gender identity.
77.      The Court may then conclude that, in such a situation, a Member State cannot rely on the absence, in its national law, of a procedure for the legal recognition of transgender identity in order to limit the right to obtain an identity document facilitating the exercise of the right to move and reside freely within the territory of the Member States of the Union citizen concerned. (55)
78.      In my view, the argument put forward by the Bulgarian Government at the hearing that, since the identity document reflects the birth certificate, it may contain only the indication of sex registered upon the birth of the person concerned, must also be dismissed. It is true that the birth certificate is the basis on which identity cards are established (56) owing to their common evidential purpose in matters of identity, the content of the former being exhaustive, the content of the latter being a summary. (57)
79.      In a birth certificate are registered a finding, namely the birth of a person of a generally determined sex and the identity given to that person (surname, first name), and the relationship with one or both parents. The indications of sex, first name and surname serve to identify the person whose birth was registered. Those indications may be correlated between the Member States in varying degrees, whether they be sociological, for example in the case of a choice of first name, or legal, for example in Bulgaria, in the case of a surname, (58) or in Hungary, according to the written observations submitted by the Hungarian Government on first names.
80.      Moreover, the choice of making the birth certificate the reference document in which are consigned amendments to the statements that it contains for evidential purposes, in particular with a view to the issue of identity documents, falls within the exercise by the Member States of their competence in matters of civil status (59) and the issue of identity documents. (60)
81.      However, in exercising that competence in those two areas, the Member States must
comply with EU law and, in particular, with the
provisions of the FEU Treaty on the freedom conferred on every citizen of the Union to move and reside within the territory of the Member States. (61)
82.      Consequently, in a legal system in which the birth certificate is the only reference document throughout a person’s life, the establishment of an identity card of a transgender person indicating a lived gender identity which differs from the indication of that person’s sex in his or her birth certificate, may only, in the light of the greater requirements conferring on the identity card its probative value (62) for the purpose of exercising the right to move and reside freely within the territory of the Member States, be preceded by an official registration of the change of gender identity. In other words, the fact that the identity document contains an indication relating to gender and that it is based solely on the person’s birth certificate, as legally established in the competent Member State by virtue of his or her nationality, gives rise for that State, owing to the purpose of the identity document, to the obligation to legally recognise the lived gender identity and to record it in that document. (63)
83.      In those circumstances, national legislation as interpreted by the national courts which does not allow a transgender person who has not obtained recognition of his or her gender identity to benefit from a right protected by EU law, such as, in the present case, the right to have an identity document enabling that person to freely exercise his or her right to move and reside within the territory of the Member States, constitutes a restriction on the right to move and reside freely provided for in Article 21(1) TFEU. (64)
84.      Moreover, the Court has held that ‘such a restriction must also be found to exist as regards the right enshrined in Article 45(1) of the Charter’. (65)
85.      According to the settled case-law of the Court, national legislation which restricts the exercise of that right, enshrined in Article 21 TFEU, can be justified only where it is based on objective considerations and is proportionate to the legitimate objective of the national provisions. (66)
86.      Moreover,
national legislation which prevents a transgender person, in the absence of recognition of their gender identity, from fulfilling a requirement which must be met in order to be entitled to a right protected by EU law
must be regarded as being, in principle, incompatible with EU law. (67)
87.      In the present case, the referring court mentions the judgment of the Konstitutsionen sad (Constitutional Court) No 15, of 26 October 2021, on which the interpretative decision is based, (68) which is founded, first,
on the principle that only the ‘biological sex’ is entered in the birth certificate, and, second, on religious values and moral principles in relation to the effects of the change of civil status of a transgender person on the members of that person’s family. (69)
88.      The Bulgarian Government did not provide specific justification at the hearing. It maintained that the legal recognition of gender identity falls within the exclusive competence of the Member States, which must be respected within the European Union.
89.      Even assuming that the national legislation, as interpreted by the Konstitutsionen sad (Constitutional Court) and the General Assembly of Civil Chambers of the Varhoven kasatsionen sad (Supreme Court of Cassation) in its interpretative decision, pursues a legitimate objective, it can, in any event, be regarded as justified only where it is consistent with the fundamental rights guaranteed by the Charter, it being the task of the Court to ensure that those rights are respected and, in particular, with the right to respect for private life referred to in Article 7 of the Charter. (70)
90.      Since the rights guaranteed in Article 7 of the Charter have, in accordance with Article 52(3) of the Charter, the same meaning and the same scope as
those guaranteed in Article 8 ECHR, the latter constituting a minimum threshold of protection, (71) it must be concluded that it follows from the case-law of the European Court of Human Rights (72) that, in accordance with their positive obligations under Article 8 ECHR, (73) States are required to provide for the recognition of the change of gender identity, in particular by allowing the persons concerned to have their civil status changed, with the ensuing consequences, (74) in official documents, in a quick, transparent and accessible manner.
91.      Moreover, in the judgment in P.H. v. Bulgaria, the ECtHR referred to its judgment of 9 July 2020, Y.T. v. Bulgaria (75) noting that it concluded that ‘the domestic authorities’ refusal
to grant legal recognition to the applicant’s gender reassignment, without providing relevant and sufficient reasons, and without explaining why it had been possible to recognise identical gender reassignment in other cases, had constituted an unjustified interference with the applicant’s right to respect for his private life’. (76)
92.      It then ruled to that effect by holding that ‘the failure to strike a balance between the applicant’s individual interests and the public interest, in the context of diverging practice of the Bulgarian high court, demonstrates, as in the case [giving rise to the judgment in] Y.T. v. Bulgaria …, rigid reasoning with regard to recognition of his gender identity. In the present case, that rigidity placed the applicant, for an unreasonable and continuous period, in a troubling position, in which he was liable to experience feelings of vulnerability, humiliation and anxiety (see, mutatis mutandis, [judgments of 11 July 2002,] Christine Goodwin v. United Kingdom [CE:ECHR:2002:0711JUD002895795], §§ 77-78 …, and Y.T. v. Bulgaria …, § 72)’. (77)
93.      Furthermore, also in the judgment in P.H v. Bulgaria, the ECtHR, informed of the procedure relating to the interpretative decision still pending when it gave that judgment, (78) stated ‘the need to refer to the recommendations of international organisations, in particular the Committee of Ministers and the Parliamentary Assembly of the Council of Europe and the United Nations High Commissioner for Human Rights, on measures to combat discrimination on grounds of sexual orientation or gender identity, including the recommendation made to States to allow a change of name and sex in official documents in a quick, transparent and accessible manner’. (79)
94.      In that context, I
propose that the Court should rule that
it is, in principle, for the referring court, without waiting until the national legislation at issue is amended by legislation or by any other constitutional procedure, to give full effect to the obligation referred to in point 82 of this Opinion by interpreting that legislation in the light of EU law, and particularly the rules on freedom of movement and residence, respect for private life and the issue of identity documents or, as necessary, by disapplying that legislation. (80) I take the view that, nonetheless, the indication of the sex of the person concerned in his or her birth certificate since it was established would not be called into question or be treated as an error to be rectified. (81)
95.      In that regard, first, the statement reiterated in the judgment in P.H. v. Bulgaria of the case-law prior to the interpretative decision that ‘the domestic law allowed the recognition of legal gender reassignment’ (82) and the dissenting opinion expressed by a number of judges when that decision was adopted by a small majority (83) are of major interest, (84) in that they demonstrate that the national regulations have not been consistently interpreted in a manner that is incompatible with EU law.
96.      Second, it should be noted that, in the judgment of 17 February 2022, Y v. Poland, (85) the ECtHR was mindful of the
historical nature of the birth record system and that reference to the gender assigned at birth, might, in certain situations, be necessary to prove certain facts predating the sex reassignment, even though this could cause the person concerned to experience some distress. (86)
97.      Moreover, whatever the procedure adopted by the Member State concerned, it seems appropriate to recall, first, that the ECtHR held that ‘safeguarding the principle of the inalienability of civil status, the consistency and reliability of civil-status records and, more broadly, the need for legal certainty are in the general interest and justify putting in place stringent procedures aimed, in particular, at verifying the underlying motivation for requests for a change of legal identity (see, mutatis mutandis, [judgments of 6 April 2017,] A.P., Garçon and Nicot v. France, [CE:ECHR:2017:0406JUD007988512], § 142, [of 11 October 2018,] S.V. v. Italy, [CE:ECHR:2018:1011JUD005521608], § 69 …, and Y.T v. Bulgaria …, § 70)’. (87)
98.      Second, although it is for the Member States to determine the conditions under which legal recognition is given to the change of gender of a person, (88) it should be made clear, in the light of the information provided by the Bulgarian Government at the hearing, that making the exercise, by a transgender person, of that person’s right to legally register his or her transgender identity for the purpose of obtaining an identity card or passport corresponding to his or her gender identity conditional on the production of evidence of gender reassignment surgery is not admissible.
99.      The Court has held that such an evidential requirement would undermine the essence of the fundamental rights guaranteed by the Charter and, in particular, the essence of the right to the integrity of the person and the right to respect for private life, referred to in Articles 3 and 7 of the Charter respectively. (89) Moreover, it stated that the ECtHR had held that the recognition of the gender identity of a transgender person cannot be made conditional on the completion of surgical treatment not desired by that person (90) and that a medical certificate, including a psychiatric diagnosis, may constitute relevant and sufficient evidence in that regard. (91)
100. Consequently, any procedure for completion of the civil status of a transgender person for the purpose of obtaining an identity document consistent with that person’s transgender identity must not be made conditional on the production of evidence of gender reassignment surgery.
101. It follows from all of those considerations that provision must be made for an appropriate civil status procedure, if necessary, by means of
a judicial interpretation of the national legislation, enabling Bulgarian nationals to be issued with identity documents corresponding to their lived gender identity.
V.      Conclusion
102. In the light of all of the foregoing considerations, I propose to answer the questions referred by the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria) as follows:
Article 20 and Article 21(1) TFEU and Articles 7 and 45(1) of the Charter of Fundamental Rights of the European Union, read together with Article 4(3) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC,
must be interpreted as
precluding national legislation, as interpreted by the national courts, which does not permit its nationals to change their gender identity, even without undergoing gender reassignment surgery, or to permit a change of their name or personal identification number to be legally recognised and entered in their birth certificate, although a change to the statements contained in their identity documents depends on such entry.
1      Original language: French.
i      The name of the present case is fictitious. It does not correspond to the real name of any of the parties to the proceedings.
2      The term ‘name’ is used here within the meaning of Article 9(1) of the Zakon za grazhdanskata registratsia
(Law on the register of civil status, DV No 67 of 27 July 1999). See points 14 and 30 of this Opinion for a reminder of that provision and the details of the subject matter of the application, respectively.
3      C‑4/23, ‘the judgment in Mirin’, EU:C:2024:845.
4      See, on the marriage of persons of the same sex, judgment of 5 June 2018, Coman and Others (C‑673/16, EU:C:2018:385, paragraphs 45 and 46), and, on parentage in respect of persons of the same sex, judgment of 14 December 2021, Stolichna obshtina, rayon ‘Pancharevo’ (C‑490/20, ‘the judgment in ‘Pancharevo’, EU:C:2021:1008, paragraph 57).
5      See judgments of 26 June 2018, MB (Change of gender and retirement pension) (C‑451/16, EU:C:2018:492, paragraph 29), and of 13 March 2025, Deldits (C‑247/23, ‘the judgment in Deldits’ EU:C:2025:172, paragraph 37).
6      See judgment in
Mirin (paragraphs 67 to 70). I note again
(see my Opinion in
Mirin (C‑4/23, EU:C:2024:385, point 73)), that
25 of the 27 Member States provide for procedures for changing civil status such that the legal birth identity is changed by virtue of an individual choice concerning gender.
7      In the opposite case, see judgment in Mirin (paragraph 57).
8      ‘The Charter’.
9      Directive of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda
OJ 2004 L 229, p. 35, and
OJ 2005 L 197, p. 34).
10      Under Article 93(4) of the
Law on the register of civil status, cited in the judgment of 16 May 2024, Toplofikatsia Sofia (Concept of the defendant’s domicile) (C‑222/23, EU:C:2024:405, paragraph 12), ‘Bulgarian nationals living abroad, who are not registered in the population register and cannot give a permanent address in Bulgaria, shall automatically be entered in the population register of the “Sredets” district of Sofia’.
11      DV No 93 of 11 August 1998. The title of that law was amended by DV No 82 of 16 October 2009.
12      See point 14 of this Opinion.
13      I propose that the Court use a feminine pronoun
in accordance with the wish
expressed by the applicant in her observations.
14      See paragraph 3 of the request for a preliminary ruling.
15      According to the clarification given by the referring court to the Court’s request for information.
16      I will not reproduce here expressions
contained in certain grounds of the French-language version of the request for a preliminary ruling, such as
‘transsexual’, ‘transsexuality’
or ‘change of sex designation’ or ‘change of sex entered in the birth certificate’
and will only use the expression
‘gender identity’ employed by the referring court
when justifying its interpretation request (see second question for a preliminary ruling
and paragraphs 79
and 80 of that request). I also refer to
K. M. H.’s written observations.
The subject matter of the dispute is not the rectification of the designation of sex in the birth certificate, which is considered to be erroneous. It is rather a request for civil registration
of a declaration of gender identity, that is, an affirmation of the conviction of belonging to a different gender from that corresponding to the sex assigned at birth, attested by medical opinions. See, on that terminological question, my Opinion in
Mirin (C‑4/23, EU:C:2024:385, footnote 4), and judgments in
Mirin (paragraph 2) and
Deldits (paragraphs 2 and 39).
17      Signed in Rome on 4 November 1950;
‘the ECHR’.
18      C‑13/94, EU:C:1996:170.
19      ‘The interpretative decision’.
20      The referring court also states in paragraph 22
of its request for a preliminary ruling
the dissenting opinion of 21 out of 44
supreme court judges
who participated in the adoption of that decision
based on the absence of conflict between
Article 8 of the ECHR and the Konstitutsiya (Constitution) maintaining that a different interpretation, in particular, of
Article 76(5) of the Law on the
register of civil status and of Paragraph 1(17)
of the Supplementary Provisions of the
Zakon za zashtita ot diskriminatsia (Law on protection against discrimination), in force since 1 January 2004 (DV No 86, of
30 September
2003, the title of which law was amended by DV No 68 of 22 August 2006), is possible.
21      That expression is taken from the second question for a preliminary ruling.
22      At the hearing, the Bulgarian Government maintained, on the basis of those circumstances, that the request for a preliminary ruling is inadmissible.
23      See, to that effect, judgment in Mirin (paragraph 41).
24      See, on the finding that
the EU citizen’s status
derives automatically from the fact of being a national of a Member State, judgment of 29 April 2025, Commission v Malta (Citizenship by investment)
(C‑181/23, EU:C:2025:283, paragraph 92). See, also, by way of a reminder of the principle
that
Union citizenship
constitutes the fundamental status of nationals of the Member States, on the one hand, and of the rights attached to that status, on the other hand, judgments in
Mirin (paragraphs 51
and 52 and the case-law cited) and of 29 April 2025, Commission v Malta (Citizenship by investment)
(C‑181/23, EU:C:2025:283, paragraph 92 and the case-law cited).
25      See
judgment in
Mirin (paragraph 52).
26      See judgment of 22 February 2024, Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date  (C‑491/21, ‘the judgment in
Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date’, EU:C:2024:143, paragraph 27).
27      Judgment in
Mirin (paragraph 71).
28      See judgment of 15 January 2013, Križan and Others (C‑416/10, EU:C:2013:8, paragraph 71), and of 26 September 2024, Energotehnica (C‑792/22, EU:C:2024:788, paragraphs 61 and 62 and the case-law cited).
29      See, in particular, judgments of 20 March 1986, Tissier (35/85, EU:C:1986:143, paragraph 9), and of 24 June 2025, GR REAL (C‑351/23, EU:C:2025:474, paragraph 61).
30      See point 38 of this Opinion.
31      See judgment in
Mirin (paragraph 71).
32      See judgment in
Mirin (paragraphs 52
to 57). More generally, on the recognition of the civil status of persons established in another Member State in accordance with the law of that other Member State
based
on the freedom conferred on all Union citizens to move and reside within the territory of the Member States, see judgment in
Pancharevo (paragraph 52 and the case-law cited).
33      See judgments in
Mirin (paragraph 53) and in
Deldits (paragraph 37).
34      In the judgment in
Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date (paragraph 27), the Court pointed out that  ‘such limitations and conditions are laid down by Directive 2004/38, the purpose of which is, inter alia, to lay down the conditions for the exercise of those rights and the limitations on them’.
35      See judgment of 29 April 2025, Commission v Malta (Citizenship by investment) (C‑181/23, EU:C:2025:283, paragraphs 84 to 86 and the case-law cited).
36      For the identity card, see recitals 17, 18, 21, 29 and 33 and Article 3(5) of Council Regulation (EU) 2025/1208 of 12 June 2025
on strengthening the security of identity cards of Union citizens and of residence documents issued to Union citizens and their family members exercising their right of free movement (OJ L, 2025/1208), which entered into force on 10 July 2025 (see Article 16 of that regulation). It replaces Regulation (EU) 2019/1157
of the European Parliament and of the Council of 20 June
2019
on strengthening the security of identity cards of Union citizens and of residence documents issued to Union citizens and their family members exercising their right of free movement
(OJ 2019
L 188,
p. 67), the effects of which were maintained under the conditions laid down by the Court
in its judgment declaring it invalid (see judgment of 21 March
2024, Landeshauptstadt Wiesbaden (C‑61/22, EU:C:2024:251, paragraph 128)). See, also, on the inclusion of biometric data, namely two
fingerprints and a facial image, in identity cards, the former supplementing the latter, judgment of 21 March
2024, Landeshauptstadt Wiesbaden (C‑61/22, EU:C:2024:251, paragraphs 91, 98 and 99).
37      See judgment of 21 March 2024, Landeshauptstadt Wiesbaden (C‑61/22, EU:C:2024:251, paragraph 51). See also Article 11(6) of Regulation 2025/1208.
38      See, by analogy, judgment in
Deldits  (paragraph 32).
39      See my Opinion in
Mirin (C‑4/23, EU:C:2024:385, footnote 4).
40      See, on the definition of ‘gender identity’, Yogyakarta principles plus 10 (Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics to Complement the
Yogyakarta Principles), adopted in November 2017 (see
https://yogyakartaprinciples.org/introduction-pj10/), p. 6, footnote 2. See, also, on the fact that personal identity, of which gender identity forms part,
may be defined as
‘all the representations and feelings
that a person develops in connection with him-or herself’
or as
‘what allows one to remain the same, to realise oneself and become oneself
in a given society or culture, and in relations with others’, Husser, A., La situation personnelle dans la jurisprudence de la Cour de justice de l’Union européenne, doctoral thesis defended on 1 December
2023, Bruylant, Brussels, 2024, p. 153, paragraph 217
and footnote 536.
41      See judgment
in
Mirin (paragraph 56).
42      Council Regulation of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1), as amended by
Regulation (EC) No 444/2009 of the European Parliament and of the Council of
28 May 2009 (OJ 2009 L 142, p. 1, and corrigendum
OJ 2009 L 188, p. 127) (‘Regulation No 2252/2004’).
43      The
Convention on International Civil Aviation, signed in Chicago on 7 December 1944 (United Nations Treaty Series, Vol. 15, No 102), established the ICAO.
The EU is not a party to that Convention (see https://transport.ec.europa.eu/transport-modes/air/international-aviation/european-union-icao_en, in particular
‘The Status of the EU at ICAO’), unlike all of its Member States (see list of States parties to the
ICAO
at the following internet address: https://www.icao.int/secretariat/legal/List%20of%20Parties/Chicago_FR.pdf).
44      In the case of Regulation No 2252/2004, see Article 1 and Annex, cited in the judgment of 2 October 2014, U (C‑101/13, EU:C:2014:2249, paragraphs 4 and 5). In the case of Regulation 2025/1208, see Article 3. The last version of Document 9303, namely the eighth, is dated 2021 (‘Document 9303’).
45      ‘TD3’means
‘Size 3 Machine Readable Travel Document’.
46      ‘MRTD’
means
‘Machine Readable Travel Document’.
47      Available a the following internet address: https://www.icao.int/publications/Documents/9303_p4_cons_fr.pdf.
48      See Document 9303, Part 4, p. 14.
49      See
Document 9303, part 4, paragraph 4.1.1.1, concerning the data element directory
of the visual inspection zone (VIZ), and note (p) of paragraph 4.2.2.2 (pp. 14
and 22): ‘Where an issuing State or organization does not want to identify the sex, the filler character (<) shall be used in this field in the [Machine readable zone
(MRZ)] and an X in this field in the VIZ.’
50      ‘TD1’
means ‘Size 1
Machine Readable Travel Document’.
51      Available at the following internet address: https://www.icao.int/publications/Documents/9303_p5_cons_fr.pdf. See Document
9303, Part 5, paragraph 4.1.1.1, concerning the data element directory
of the
VIZ, and note (f) of paragraph 4.2.2.3 (pp. 11
and 16): ‘Where an issuing State or organization does not want to identify the sex, the filler character (<) shall be used in this field in the MRZ and an X in this field in the VIZ.’
52      Moreover,
I note that that data element
is not included among those which are
regarded by the ICAO
as being identifying data
in its Guide on Evidence of Identity, available at the following internet address: ICAO Guide on Evidence of Identity.pdf (see paragraph 2.5).
53      See point 26 of this Opinion.
54      See points 57, 60, 66 and
67 of this Opinion.
55      See, to that effect, judgments in
Mirin (paragraph 60 and the case-law cited) and in
Deldits (paragraph 37 and the case-law cited).
56      See, to that effect, judgment of 14 October 2008, Grunkin and Paul (C‑353/06, EU:C:2008:559, paragraphs 25
and 26). See, also, for a previous finding on the Bulgarian legislation, judgment in
Pancharevo (paragraphs 44
and 45). See, also, the ICAO guide cited in footnote 52 of this Opinion (paragraphs 2.5 and 2.5.1).
57      For example, in the event of a change of surname or first name.
58      See points 15 and
16 of this Opinion.
59      See point 58 of this Opinion.
60      See points 69 et seq. of this Opinion. In certain legal systems, the legal recognition of lived gender identity
may, in itself, be sufficient for the issue of an identity card indicating that gender. See, in particular, judgment in
Mirin (paragraph 27). In that case, the issue of a gender identity certificate
implied full recognition, for all purposes, of the gender acquired by the person concerned. However,
that certificate may not be used
as a means of identification. See my Opinion in
Mirin (C‑4/23, EU:C:2024:385, point 16).
61      See, respectively, judgments in
Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date  (paragraph 38) and in
Deldits (paragraph 37 and the case-law cited).
62      See, to that effect, judgment of 21 March 2024, Landeshauptstadt Wiesbaden (C‑61/22, EU:C:2024:251, paragraph 91).
63      In that sense, that situation must be distinguished from the situation
on the basis of which the case-law
relating to equal treatment
in the case of a change of sex has been developed. The latter situation concerns the effects of that change
decorrelated from civil status matters. See judgments of 7 January 2004, K. B. (C‑117/01, EU:C:2004:7, paragraph 12); of 27 April 2006, Richards (C‑423/04, EU:C:2006:256, paragraph 28), and of 26 June 2018, MB (Change of gender and retirement pension) (C‑451/16, EU:C:2018:492, paragraphs 22
and 35), in which the Court
considers that change to have been acquired, since the concept of ‘sex’ is not limited to biological sex. See, in that regard, Husser, A., op. cit., p. 155, paragraph 222. See further, judgment of 30 April 1996, P. v S. (C‑13/94, EU:C:1996:170, paragraphs 19 and 20), in which the Court states that
it has a duty to ensure
observance of the
right not to be discriminated against on grounds of sex, which is one of the fundamental human rights, and adopts an approach
which takes into account the feeling of belonging
to a sex other than that ascribed at birth.
64      See, to that effect, judgments in Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date  (paragraph 48) and in
Mirin (paragraph 57).
65      See judgment in
Mirin (paragraph 58). See, also, judgment in
Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date  (paragraphs 49
to 51).
66      See judgment in
Mirin (paragraph 59
and the case-law cited).
67      See judgments in
Mirin (paragraph 60) and in
Deldits (paragraph 37).
68      See point 36 of this Opinion.
69      See, for the statement of almost identical grounds,
judgment of the European Court of Human Rights of 27 September
2022, P.H. v. Bulgaria (CE:ECHR:2022:0927JUD004650920, § 4, in fine, and § 15);
‘the judgment in
P.H. v. Bulgaria’.
70      See judgment in
Mirin (paragraph 62
and the case-law cited).
71      See, in particular, judgments in
Mirin (paragraph 63
and the case-law cited) and in
Deldits (paragraph 46).
72      ’ECtHR’.
73      See judgment in
P.H. v. Bulgaria
(§ 12, stating that the general principles applicable to the assessment of the State’s positive obligations in the matter
have been summarised in the judgment of the
ECtHR
of 16 July 2014, Hämäläinen v. Finland (CE:ECHR:2014:0716JUD003735909, §§ 65 to 67)).
74      See, to that effect, judgment of the ECtHR
of 16 July 2014, Hämäläinen v. Finland (CE:ECHR:2014:0716JUD003735909, § 68 and the case-law cited). The positive obligation stated in that judgment
was then extended to cases of transgender persons who have not had gender reassignment surgery
(see, for example, judgment of the ECtHR
of 19 January 2021, X and Y v. Romania, (CE:ECHR:2021:0119JUD000214516, §§ 165 and 168)). See, also, case-law cited in paragraphs 64
to 66 of the
judgment in
Mirin. It is recalled, in particular, that
‘Article 8 ECHR protects a person’s sexual identity as a constituent element and one of the most intimate aspects of his or her private life’ (judgment in
Mirin,
paragraph 64). That case-law of the ECtHR
differs from that on marriage
(see, in that regard, my Opinion in
Wojewoda Mazowiecki (C‑713/23, EU:C:2025:235, point 48, first indent))
or parentage, in that it allows only limited discretion.
75      CE:ECHR:2020:0709JUD004170116;
‘the judgment in
Y.T. v. Bulgaria’.
76      Judgment in
P.H. v. Bulgaria (§ 12 and the case-law cited).
77      Judgment in
P.H. v. Bulgaria (§ 17).
78      See Judgment in
P.H. v. Bulgaria
(§ 6). See, also, point 36 of this Opinion.
79      See
judgment in
P.H. v. Bulgaria
(§ 18 and the case-law cited).
80      See, by analogy, judgment of 21 January 2021, Whiteland Import Export (C‑308/19, EU:C:2021:47, paragraph 58 and the case-law cited).
81      I note that, in Regulation (EU) 2016/679 of the European Parliament and of the Council of
27 April
2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive
95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1), Article 5(1)(d)
and the second sentence of Article 16
of that regulation
provide for the
right to have personal data completed
and kept up to date.
82      Judgment in
P.H. v. Bulgaria
(§ 6, which refers to the summary of the Bulgarian case-law
on change of sex
in the judgment in
Y.T. v. Bulgaria (§ 24 to 30)).
83      See, as regards that dissenting opinion, footnote 20 of this Opinion.
84      The effects of the decisions of the ECtHR for the persons concerned and the application of Article 9(1) of the law on Bulgarian identity documents were mentioned at the hearing. (See point 24 of this Opinion). The provisions drawn from the judgment in Y.T. v. Bulgaria
should also be noted (see § 19 of that judgment). The provisions in question are Article 20(2)(5) and
Article 22(7)(3)
of the Pravilnik za izdavane na bulgarskite lichni dokumenti (Regulation on the issue of Bulgarian identity documents) of the Council of Ministers of 8 February 2010 (DV No 12 of 12 February 2010), according to which, in the event of a change of sex, if that is not recorded in the national ‘Population’ database, an official document established by the competent authorities must be attached to the request for a new identity document (passport or identity card). Such a document must also be attached in the event of substantial and lasting facial changes
(Article 20(1)(2) and
Article 22(6)(4)
of that regulation).
85      CE:ECHR:2022:0217JUD007413114.
86      See judgment of the ECtHR
of 17 February
2022, Y v. Poland (CE:ECHR:2022:0217JUD007413114, § 79).
87      Judgment in P.H. v. Bulgaria
(§ 14).
88      See judgment of 27 April 2006, Richards (C‑423/04, EU:C:2006:256, paragraph 21 and the case-law cited).
89      See judgment in
Deldits (paragraph 45).
90      See judgment in
Deldits (paragraph 48
and the case-law cited).
91      See judgment in
Deldits (paragraph 49
and the case-law cited). In the present case, according to the findings of the referring court, K. M. H fulfils the
physical, social and psychological conditions for the legal recognition of the change of identity.