Denial of transgender person’s request to change gender identity and name. Violation of respect for privacy due to lack of regulatory framework
JUDGMENT
R.K. v. Hungary 22.06.2023 (app. no. 54006/20)
SUMMARY
Private life. The applicant, a transgender person, submitted a request to change his “gender” and name, attaching medical reports from a specialist clinical psychologist, psychiatrist and gynecologist as required by national law. His request was rejected on the grounds that he did not meet the formal requirements. The Court found a lack of a clear national legal framework regarding gender reassignment. In particular, the absence of any clarification of the nature of the certificate and the authority competent to certify the change of “gender” and to issue a supporting medical expert opinion constituted a significant obstacle to the exercise of the right to legal gender recognition by those concerned.
The Court ruled that the legal framework in force at the relevant time in Hungary had not provided for “quick, transparent and accessible procedures” for considering a request to change the registered gender of transgender people on birth certificates.
The ECtHR found a violation of the respect for private life (Article 8 of the ECHR) and awarded the applicant 10,000 euros for moral damage.
PROVISION
Article 8
PRINCIPAL FACTS
Before 2016 the procedure to change the “sex/gender marker” on a person’s national identity card was unregulated in Hungary. In practice, the Office of Immigration and Nationality processed requests containing medical reports from a gynaecologist or urologist, a specialist clinical psychologist and a psychiatrist, transmitted them to the Ministry of Human Resources for an expert medical opinion and the local registrar then recorded the necessary changes in the register of births. Section 7 of Government Decree no. 429/2017 on the procedural rules for the registration of birth certificates (“the Decree”), which came into force on 1 January 2018, stipulated that the authority responsible for the issuance of birth certificates – at that time the Budapest Government Office (“BGO”) -, had to officially notify the competent registrar of births to record the necessary changes in a petitioner’s birth certificate based on an expert medical opinion supporting the request. On 29 May 2020 amendments to Act no. I of 2010 (“the Act”) on the civil registration procedure entered into force, prohibiting the change of the sex assigned at birth in the register. Although that Act prescribed the retroactive application of the rules for pending cases, the relevant provision was declared unconstitutional by the Constitutional Court and repealed with effect on 8 April 2021.
In January 2018 the applicant, a transgender person, lodged a request to change his “sex/gender marker” and name, attaching medical reports from an expert clinical psychologist, a psychiatrist and a gynaecologist. In July 2019 he was informed by the BGO that under the legislation in force, no authority had jurisdiction to issue expert medical opinions to support the request. The BGO then transferred his file to the competent registrar who dismissed it on the grounds it did not contain either the BGO’s official notification or the supporting expert medical opinion. In June 2020 the applicant’s request for judicial review of that decision was rejected by the High Court which cited the lack of both the above in the applicant’s file and held that the medical reports submitted could not be accepted as the required “supporting expert medical opinion”. Nonetheless, it held that there was a legal lacuna in respect of both requirements and that it was not for the administrative authorities or for the courts to fill the legal gap through interpretation.
THE DECISION OF THE COURT…
Law – Article 8
(a) Preliminary remarks – As the applicant had lodged his request for the legal recognition of his gender identity prior to the amendments to the Act, it had been examined and dismissed in application of the legal provisions in force prior to those amendments. Nonetheless, under the rules currently in force, he was not able anymore to lodge a new one. Therefore, the primary question that had to be determined was whether at the material time the respondent State had failed to comply with its positive obligation to put in place an effective and accessible procedure, with clearly defined conditions securing the applicant’s right to respect for his private life.
(b) Compliance with the State’s positive obligation – While there was no provision in domestic law that explicitly provided for the alteration of a person’s gender identity, legal gender recognition had taken place as the change of a person’s name and “sex/gender marker” in the register of births in the course of administrative proceedings. The practice followed until 2016 had been criticised by the Commissioner for Fundamental Rights for, inter alia, the lack of a clear regulatory framework. After the Decree entered into force, the approach applied by the BGO had been inconsistent and, with very few exceptions, had not yielded any results. The BGO either suspended the processing of requests for legal gender recognition or transferred the requests (of its own motion or at the petitioner’s request) to the competent local registrars for decision, without the requisite official notification and without the supporting expert medical opinion. That seemed to be due to the numerous inconsistencies in the division and the understanding of their respective competencies between the authorities involved. The lack of a clear legal framework had also left the local registrars with excessive discretionary powers, leading to the inconsistent practice of either dismissing requests for gender recognition, citing failure to comply with the statutory preconditions, or occasionally allowing them. The absence of any clarification of the nature of the certificate and the authority competent to attest to the change of “sex/gender marker” and to issue a supporting expert medical opinion had been an effective obstacle to the petitioners’ exercise of their right to legal gender recognition.
The High Court in the applicant’s case had found that the local registrar’s decision could not be remedied as it had been the result of legal lacunae. A number of domestic authorities, including the Commissioner for Fundamental Rights and the Constitutional Court, had reached the same conclusion concerning the legislative gap and the need for the legislator to enact appropriate rules governing the legal recognition of gender identity. Consequently, the Government’s argument that the applicant could have initiated judicial proceedings to compel the administrative authority to comply with its obligation to deliver a decision on the merits of his request was unconvincing whereas their conclusion that he would have been allowed to have his “preferred gender” recognised if he had pursued his case before the Kúria and the Constitutional Court, close to speculation, and without any basis in domestic practice.
The inconsistencies in the interpretation of the domestic law by the domestic authorities had been the result of the law itself not being sufficiently detailed and precise. The Constitutional Court’s ruling that had repealed the provision prescribing the retroactive application of the new rules for pending cases, could not change the applicant’s situation, whose case had already terminated. Nor had his situation changed with the adoption of decisions by the Kúria stating that the applicable provisions permitted the modification of entries in the register of births for requests lodged before the amendments to the Act and still pending, as those decisions had been delivered over a year after the lodging of his application with the Court and after the refusal of his request. The Kúria had also taken no position as to whether there was a procedure at all to be followed in cases like the applicant’s. In practice the applicant would have no other means, but to submit a new request for the change of his “sex/gender marker” in the register, which was excluded under the legislation currently in force. In any event, the reading of those decisions did not lead the Court to the conclusion that there was an established practice of legal gender recognition in Hungary.
The circumstances of the present case had revealed legislative gaps and serious deficiencies that had left the applicant in a situation of distressing uncertainty vis-à-vis his private life and the recognition of his identity. That situation, for which the national authorities bore sole responsibility, was having long-term negative consequences for his mental health. The foregoing considerations were sufficient to enable the Court to conclude that the legal framework in force at the material time in the respondent State had not provided “quick, transparent and accessible procedures” for the examination of a request to change the registered sex of transgender people on birth certificates. The Government’s non-exhaustion objections, which had been joined to the merits, were therefore dismissed.
In conclusion, there had been a lack of a regulatory framework ensuring the right to respect for the applicant’s private life.
Conclusion: violation (six votes to one).
Article 41: EUR 10,000 in respect of non-pecuniary damage.
