The European Court of Justice (ECJ) issued a decision on Thursday (March 13) that should serve to strengthen transgender refugee rights across Europe. The case relates to an Iranian national, known by the initials VP* for court purposes.

In 2014, VP obtained refugee status in Hungary "by relying on their transgender identity and producing medical certificates drawn up by specialists in psychiatry and gynecology," states a press release from the ECJ.

According to those certificates, VP had been born female in Iran but had since transitioned and now has a male gender identity. Although VP was granted refugee status on the basis of the recognition of that identity, they were registered in Hungary as female on the asylum register.

In 2022, states the ECJ press release, using EU data protection laws, (which gives people the right to correct inaccurate information held about them) VP requested that the asylum authority rectify their entry in respect of gender on the register. However, the request was rejected on the grounds that VP "had not proved that they had undergone gender reassignment surgery."

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Case referred to ECJ

VP then launched an action against this rejection before the Budapest High Court in Hungary. The Hungarian High Court then referred the case to the ECJ, asking first whether the asylum authority should be expected to rectify the personal data relating to the gender identity of a person "where those data are inaccurate," and second, "whether a member state may, by way of an administrative practice, make the exercise of the right to rectification of those data conditional upon the production of evidence of, in particular, gender reassignment surgery."

The ECJ decided that based on the principle of accuracy, "a subject has the right to obtain…without undue delay, the rectification of inaccurate personal data concerning him or her."

The court added that the "assessment of whether those data are accurate and complete must be made in the light of the purpose for which those data were collected."

They referred the decision back to Hungary, saying it was up to their courts to "verify the accuracy of the data at issue, in the light of the purpose for which they were collected." So, they said, if the data had been collected to identify the gender of the subject, then the data should refer to that person’s lived gender identity and not to the identity assigned to them at birth.

The ECJ further added that a member state, in this case, Hungary, "cannot rely on the absence in its national law of a procedure for the legal recognition of transgender identity in order to limit the exercise of the right to rectification."

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Proof of gender reassignment surgery not necessary

The ECJ added that although a person wanting to rectify an inaccuracy may be required to provide "relevant and sufficient evidence," to establish that the data are inaccurate, a member state "may not under any circumstances make the exercise of the right to rectification conditional upon the production of evidence of gender reassignment surgery."

Because, found the ECJ, that would "undermine the right to the integrity of the person and the right to respect for private life." They added they believed that a requirement for the gender reassignment certificates was "not necessary or proportionate," for the public asylum register "since a medical certificate, including a psychiatric diagnosis, may constitute relevant and sufficient evidence in that regard."

The judgment, reports the German Protestant news service EPD, offers a clear outline for EU authorities across the bloc about how to handle gender identities or refugees and asylum seekers.

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Hungary and transgender rights

In 2020, Hungary’s parliament passed a law that banned transgender and intersex people from legally changing their gender, notes the organization Human Rights Watch. However, Hungarian jurisprudence does contain strong support from transgender and intersex people’s rights to legal recognition, noted HRW in 2023.

A 2018 Constitutional Court ruling "found that Hungary’s Fundamental Law requires the state to allow trans people to self-identify." The court ruled that "the right to bear a name consistent with one’s gender is a fundamental right deductible from the right to human dignity."

The Háttér Society in Hungary has been fighting to protect LGBTQI+ rights in Hungary. They also helped support VP in his legal battle along with the Hungarian Helsinki Committee.

Gábor Győző, the lawyer representing VP on behalf of the Háttér Society and the Hungarian Helsinki Committee, "it is very important and welcomed that the court not only addressed the specifics of the case, but also assessed the Hungarian legal framework and the protection of the rights of trans people in a broader context."

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

In Hungary, the government is now attempting to change the Fundamental law, "to prevent efforts that suggest the possibility of changing the sex of birth," notes the Háttér Society in a press release. Their hope is that the ECJ ruling will help to hinder these amendments, by "clearly obliging Hungary to ensure the possibility to change the gender marker in public registers."

Contacts for the Háttér Society are as follows:

1136 Budapest, Balzac u.8-10., Hungary

Phone: +3613292670

Email: hatter@hatter.hu

They run an information and counseling hotline:

Information and Counselling Hotline. Phone: (+361) 329 3380 (pay number) 137-37 (toll-free from Hungary)

**The language of the service is Hungarian, but depending on which volunteers are working, they say they can sometimes provide help in English, German, Romanian, Russian and Slovakian, especially in written form.

 *Not their real initials, used to protect their identity