Correction of data on gender identity cannot depend on proof of surgical operation. This is stated in the judgment of the EU Court of Justice in case C-247/23.
In 2014, V.P., an Iranian national, obtained refugee status in Hungary, citing his trans identity and presenting medical certificates drawn up by specialists in psychiatry and gynaecology. According to those certificates, although the person in question was born a woman, his gender identity was that of a man.
After his refugee status was recognised, the person in question was entered as a woman in the asylum register. In 2022, on the basis of the same medical certificates, V.P. requested, in particular, that authority to correct the indication of his gender in that register and the asylum granted. However, the person’s request was rejected on the grounds that V.P. did not prove that he had undergone gender reassignment surgery.
The person appealed against the refusal before the Budapest City Court. It stated that Hungarian law does not provide for a procedure for the legal recognition of trans identity.
The Court of Justice of the EU stated that, under Article 16 of the General Data Protection Regulation (GDPR), and in particular under the principle of accuracy laid down therein, the data subject has the right to obtain from the controller the rectification without undue delay of inaccurate personal data relating to him. That regulation thus gives concrete expression to the fundamental right enshrined in the Charter of Fundamental Rights of the European Union (hereinafter referred to as the “Charter”), according to which everyone has the right of access to data collected concerning him and the right to have them rectified.
In that regard, the Court of Justice of the EU noted that the accuracy and completeness of those data must be assessed in the light of the purpose for which they were collected. The CJEU considers that the Hungarian court must verify the accuracy of the data at issue in the light of the purpose for which they were collected. If the collection of those data is intended to identify the data subject, those data appear to relate to the gender identity experienced by that person and not to the gender identity assigned to him or her at birth.
In that context, the CJEU states that a Member State cannot rely on the absence of a procedure for the legal recognition of transidentity in its national law in order to prevent the exercise of the right to rectification. Indeed, although EU law does not affect the competence of the Member States in the field of civil status and the legal recognition of their gender identity, those States must comply with EU law, including the GDPR, read in the light of the Charter.
The Court of Justice of the EU concluded that the GDPR must be interpreted as requiring a national authority responsible for maintaining a public register to rectify personal data relating to the gender identity of a natural person where those data are inaccurate within the meaning of that regulation. Secondly, the Court found that, in order to exercise the right to rectification, that person may be required to provide relevant and sufficient evidence which may reasonably be required to establish the inaccuracy of those data.
However, a Member State may in no circumstances make the exercise of the right to rectification conditional on the production of evidence of gender reassignment surgery. Such a requirement affects, in particular, the essence of the right to the integrity of the person and the right to respect for private life, as set out in Articles 3 and 7 of the Charter respectively.
Furthermore, such a requirement is in any event neither necessary nor proportionate in order to ensure the reliability and consistency of a public register such as the register of asylum granted, since a medical certificate, including a preliminary psychological diagnosis, may constitute relevant and sufficient evidence in that regard.
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First published in this link of The European Times.
