LONDON – The European Union’s top court ruled Friday that member states must recognize legal changes to gender identity processed elsewhere within the EU, in a case with far-reaching implications for transgender people across Europe.
The Court of Justice of the European Union sided with Arian Mirzarafie-Ahi, a transgender man who sued his home country of Romania for refusing to accept the name and gender identity changes he initiated in Britain when it was still a member of the EU
The court agreed that Romania violated his rights to citizenship and free movement by refusing to update his Romanian identity documents.
“Gender, like a first name, is a fundamental element of personal identity,” the court said in a news release accompanying its ruling. “A divergence between identities resulting from such a refusal of recognition creates difficulties for a person in proving his or her identity in daily life as well as serious professional, administrative and private inconvenience.”
Mirzarafie-Ahi told The Washington Post that the ruling “is really quite amazing.” The 32-year-old – who lives in Cambridge, England, and works as a science tutor – is hopeful he can return to Romania with new identity documents.
His legal team hopes the ruling will make it easier for other transgender people to travel freely and work or study in EU member states. Accept, an LGBTQ rights advocacy group in Romania that helped with his case, said there are “tens of thousands” of people in similar situations.
The ease of obtaining a gender recognition certificate varies widely within the EU Some countries – including Belgium, Ireland and Spain – permit people to self-declare. Other countries – such as Cyprus, Latvia and Slovakia – require sterilization or surgical interventions. Bulgaria and Hungary, meanwhile, don’t allow legal changes to gender identity at all.
In socially conservative Romania, the process is relatively difficult. In 2021, the European Court of Human Rights ruled that Romania had violated the privacy rights of two transgender people when a judge refused on the grounds that they did not furnish proof that they had undergone surgery.
Mirzarafie-Ahi moved to the United Kingdom with his parents in 2008, became a British citizen in 2016 – the year of the Brexit referendum – and received a gender recognition certificate four years later when Britain was on its way out.
But Romania refused his request to update his Romanian passport, which he said effectively restricted his travel. Freedom of movement is one of the key pillars of the EU, allowing citizens to live and work anywhere in the bloc.
Mirzarafie-Ahi recalled an incident in 2018 when he traveled to Romania and was grilled by border patrol authorities because he looked different from the photo in his Romanian passport.
He described an “intimidating” and “uncomfortable” conversation that included questions about what surgeries he might undergo, as well as his genitals. “Whatever that was, it started inappropriately curious but ended up completely invasive and offensive. I just wanted it to be over,” he said.
Mirzarafie-Ahi was also denied a new birth certificate and identity card, which Romanians need for everyday interactions such as using public transportation, going to the bank or picking up the mail.
The court acknowledged that the status of a person’s gender identity is a matter that should be handled by national authorities. But it emphasized that national decisions must comply with EU laws, especially “the freedom conferred on all Union citizens to move and reside within the territory of the Member States.”
The court added that the fact that Britain is no longer part of the EU does not affect the application of the bloc’s law.
“It goes to the issue of competence, meaning, does the EU have the power to have any say over these things?” said Catherine Barnard, an expert in EU law at the University of Cambridge. “It’s like in the states: Is it a state issue? Or a federal issue? When it comes to anything that gets in the way of free movement, then the EU has the power.”
She said that in these kind of cases, free movement has become a kind of “Trojan horse” to push change.
“Of course, to liberals, it’s a good thing, to use the courts to push Romania to become more progressive, but if you’re more conservative or hostile to the EU, you can say, ‘How dare the EU interfere with things that go to the heart of our beliefs,’ ” she said.
Rodrigo Ballester, from the Budapest-based think tank Mathias Corvinus Collegium, which has ties to the Hungarian government, responded to the ruling on the social media site X: “Total legal nonsense to make gender delirium compulsory.”
Rulings by the European Court of Justice are binding and impact millions of people across the bloc. However, implementation can be difficult to enforce.
In 2018, the court ruled in favor of Adrian Coman, a gay man from Romania, who fought for the right to have his American husband, Clai Hamilton, live with him in Romania. The couple had been married in Brussels, where same-sex marriages are permitted and where Coman worked as an EU official. However, authorities in Romania, where same-sex marriage is barred, did not recognize their marriage.
The court acknowledged that EU residency rights are awarded to spouses and that “spouse” was gender-neutral. The Coman case has been used in courts by same-sex married couples to win residency rights, including in Bulgaria. But Romania has yet to grant Hamilton residency rights.
The same resistance could follow Friday’s ruling. But even if it does, “trans and intersex people in similar situations in other EU countries will, in any event, be able to use [Friday’s] judgment in their own cases,” said Marie-Hélène Ludwig, senior strategic litigation officer at ILGA-Europe, an advocacy group for LGBTQ+ people.
Mirzarafie-Ahi said he is now looking forward to using his updated identity documents in Romania and “just walking in and not being asked, ‘Are you a tourist? How long are you staying? Who are you seeing?’”
“I want to say, ‘I’m from here. I was born here,’” he said.