C-4/23, Mirin: At the crossroads of gender identity and EU citizens’ right to freedom of movement

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Previously published on EU Law Live.

I. United in diversity?

When it comes to the procedure for changing the legal gender of a person, solutions vary significantly from one EU Member State to another. Some Member States have adopted a rather lenient approach by enabling the self-determination of the gender. For instance, in Spain since 2022, it is possible to change gender by simply making a ’statement of disagreement with the registered sex‘ before the civil registry. Conversely, in other Member States, the procedure is more complicated, requiring gender-affirming surgery as a prerequisite to legally change gender. The referred divergences between Member States are the core of the case C-4/23,Mirin.

II. Background of the case

M-A.A.is a Romanian national who moved to the United Kingdom where he obtained the British citizenship. There, M-A.A. also changed his gender from female to male, as well as his name through ‘the deed poll procedure’, an expedited procedure that ‘enables British citizens to change their name or first name by making a simple declaration’ (para. 27).

Relying on the British gender identity certificate, M-A.A. asked the Civil Status Service of the Cluj Directorate for Personal Records in Romania to amend his gender and name on his birth certificate. Romanian authorities refused to do so, arguing that according to Romanian law, such a change on the birth certificate had to be approved through a judicial decision. M-A.A. decided to challenge this decision before the Court of First Instance, Sector 6, Bucharest. M-A.A. argued that not recognising his legally acquired gender change in the United Kingdom generates a disparity between his Romanian birth certificate and his travel documents issued by the British authorities. Furthermore, the Romanian judicial proceeding to legally change his gender could end in the refusal to grant such change, pervading the lack of coherence between the British travel documents and the birth certificate. Such divergence could hinder his ‘right to move and reside freely within the territory of the Member States’ as an EU citizen that is enshrined in Article 21 of the Treaty of the Functioning of the European Union (TFEU) and Article 45 of the EU Charter of Fundamental Rights (EUCFR).

The Romanian court deciding on the case submitted a preliminary reference to the Court of Justice asking, in essence, to what extent Romanian legislation that does not allow the recognition of a change of the name and gender legally acquired in other Member States and that requires to undergo a judicial procedure to obtain such change in Romania is compatible with the EU citizen’s right to move and reside freely across the EU.

III. The Court’s findings

The Court began its reasoning by recalling that EU citizens have the right to freedom of movement and residence across the EU. At the same time, the Court also acknowledged that such a right can be hindered if the authorities of a Member State refuse to recognise a change in the name and gender of an EU citizen legally adopted in another Member State while exercising the right to freedom of movement and residence. In this regard, the Court stated that limitations can be introduced if they respond to a legitimate and proportionate object. Nonetheless, neither the Romanian government nor the court that submitted the preliminary reference provided the Court with explanations on the legislation ‘which does not allow the recognition and entry in the birth certificate of a change of first name and gender identity, lawfully acquired in another Member State, and which thus obliges the person concerned to initiate before the national courts new proceedings for a change of gender identity’ (para. 51).

The Court also indicated that any restriction on the right to freedom of movement had to respect the standards of protection of fundamental rights established by the EUCFR. In this regard, the Court referred to the existing link between the EUCFR and the European Convention on Human Rights (ECHR). According to Article 52(3) of the EUCFR, in so far as it ‘contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention’. The Court of Justice of the European Union (CJEU) acknowledged that the European Court of Human Rights (ECtHR) had found that Romania violated the right to privacy under Article 8 of the ECHR because it lacked a ‘clear procedure and foreseeable procedure for legal recognition of gender identity which allows for a change of sex’ (ECtHR, 19 January 2021, X and Y v. Romania, para.168). Article 7 of the EUCFR is the equivalent provision of Article 8 of the ECHR. Therefore, the Romanian legislation that prevented the recognition of the lawfully acquired name and gender change in another Member State and required the initiation of a judicial procedure to attain those same legal changes in Romania would contravene Article 7 of the EUCFR read in light of the referred ECtHR judgment (paras. 67-68). This implies that the restriction on the right to free movement and residence ‘would not be consistent with the fundamental rights guaranteed by the Charter’ (para. 62)

The Court also highlighted that undergoing the Romanian judicial procedure to obtain a gender identity change would not necessarily mean that such change would be granted, given the ‘discretion enjoyed by the competent authorities’ to decide on such a request. That could potentially create a ‘divergence between two names and two genders used for the same person as evidence of his or her identity’. Such divergence could cause ‘serious inconvenience’ for that national at administrative, professional and private levels’ when exercising the right to free movement and residence (para. 55).

For all the above reasons, the Court found that the right to freedom of movement and residence enshrined in Article 21 of the TFEU precludes ‘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’ (para. 71).

IV. Analysis of the judgment

The reasoning that Court followed in C-3/24, Mirin, is echoed in the reasoning followed in other CJEU judgments concerning the interfaces between the right to freedom of movement and residence, and the civil status of LGBT persons. In C-673/16, Coman, the Court determined that Romania had to recognise a same-sex marriage for the purpose of granting the residence to a third-country national married with an EU citizen. In C‑490/20, Pancharevo, the Court found that Bulgarian authorities had to recognise a birth certificate issued by Spanish authorities in which two women appeared as the parents of a child for the purpose of issuing a Bulgarian identity card for the child. Otherwise, neither the child nor the parents could effectively enjoy the right to freedom of movement and residence across the EU. It is not surprising that the Court expressly referred to this case law in C-4/23, Mirin (see, para. 51).

The Court’s reasoning in these three cases follows, in broad terms, the same pattern. The Court begins by acknowledging that the non-recognition of the civil status of an EU citizen by a Member State can amount to a restriction of the EU citizens’ right to freedom of movement and residence. Subsequently, the Court explores whether such restriction responded to a legitimate objective. At this point, a difference can be appreciated between C-3/24, Mirin and the two other judgments. Unlike in C-673/16, Coman and C‑490/20, Pancharevo, in C-3/24, Mirin, the respect of Romania’s national identity and its public policy was not brought before the Court to justify Romania’s legislation requiring to undergo a judicial procedure to legally change gender.

In the three cases, the Court determined that the restrictions on the right to freedom of movement and residence derived from the non-recognition of civil status were unjustified. The Court also indicated specific measures that Member States had to adopt to ensure EU citizens effectively enjoy their right to move and reside freely across the EU. Those measures also reflect the limited recognition of the civil status that can be attained through the right to freedom of movement and residence. For instance, in C-673/16, Coman, the recognition of a same-sex marriage in Romania was strictly limited to granting a long-term residence permit for the non-EU citizen spouse. For all other legal matters, Romania was not required to recognise such marriage. In C 490/20, Pancharevo, Bulgarian authorities were not required to issue a birth certificate acknowledging that the child has two mothers, but just the necessary travel documents that would allow the child to effectively benefit from the right to freedom to movement and residence as an EU citizen. In C-3/24, Mirin, the implications are more significant because Romania is required to amend the name and gender in the birth certificate as established in the British gender certificate. Such change has implications in purely domestic situations beyond the right to freedom of movement and residence.

From a practical perspective, C-4/23, Mirin has introduced a de facto alternative path to the complex Romanian judicial procedure to legally change gender in Romania. Those Romanian citizens who have moved to other Member States and were able to legally change their gender are those who can benefit from what the Court established in C-4/23, Mirin. Nonetheless, as AG de la Tour remarked, there has to be a close connection between the person and the Member State where this person intends to legally change their gender (Opinion AG de la Tour in C-4/23, Mirin, para. 75). Such close connection can be established when a person resides or is a national (as in the case of M.-A.A) of that Member State. Moving to another Member State with the sole purpose of legally changing gender could be considered a fraudulent circumvention of the Romanian procedure to obtain such change.

C-4/23, Mirin also exposes Romania’s disregard for the above referred ECtHR judgment which determined that Romania’s procedure to legally change gender contravened Article 8 of the ECHR. Despite this ruling, such procedure remains as it was. The same occurred when the ECtHR determined that Article 8 of the ECHR required Romania to give legal recognition to same-sex couples (ECtHR, 23 May 2023, Buhuceanu and Others v. Romania). To the present day, same-sex couples in Romania do not enjoy any kind of recognition. However, when it comes to the Court’s rulings, Romania cannot ignore them as it did for those of the ECtHR. The Commission could trigger an infringement procedure against Romania if this does not follow what the CJEU determined in C-4/23, Mirin. For instance, after C-673/16, Coman, the Romanian government proposed a legislative amendment to recognise same-sex marriage concluded in other Member States just for the purposes of residency. C-4/23 Mirin will not fall on deaf ears in Romania. Nonetheless, while disparities in the recognition of LGBT rights persist across the EU, cases such as C-673/16, Coman or in C-4/23, Mirin will continue making their way before the Court.

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