Introduction
Transgender persons are among the most vulnerable and marginalised groups in the EU.Footnote 1 They face condemnation and exclusion not only from conservative, religious, and right-wing groups, but also from certain feminist circles and women’s rights advocates.Footnote 2 Recent developments in several countries have revealed a worrying rollback in the protection of transgender rights, whether through new government policies, as in the US, or judicial decisions, as recently seen in the UK.Footnote 3 Despite their precarious position, transgender persons remain notably absent from primary and secondary EU legislation: neither the EU Treaties nor any secondary legislation instruments make an explicit reference to them, and gender identity is not listed among the prohibited grounds of discrimination in the EU Treaties,Footnote 4 the Charter,Footnote 5 or the EU anti-discrimination directives.Footnote 6 Nevertheless, since the 1990s, the Court of Justice has progressively broadened the EU’s prohibition on sex discrimination to cover discrimination on the ground of ‘gender reassignment’,Footnote 7 and earlier this year, it has been held to also include discrimination based on gender identity.Footnote 8
Recently, the European Court of Justice had the opportunity to rule on another case involving a transgender applicant – Mirin.Footnote 9 Unlike the previous EU case law involving transgender persons, this case does not concern discrimination. Rather, it is best characterised as a free movement case with a (trans)gender dimension. The central issue in this case was whether EU member states are obliged to recognise a change in legal sex lawfully concluded in another member state. The objective of legal gender recognition is clear, and it is to ensure that transgender individuals can have their legal sex aligned with their gender identity. As will be seen, the Court in Mirin ruled that member states are required by EU law to fully recognise such a change in legal sex effected in another member state, by permitting its entry in the applicant’s birth certificate – a development that marks a different approach from the one adopted by the Court in its earlier rulings in Coman Footnote 10 and V.M.A.,Footnote 11 where it required only recognition of the effects of same-sex marriages and parenthood established in another member state, and solely for the purpose of enabling Union citizens to exercise their free movement rights. The ruling, therefore, has rightly been hailed as a significant victory for transgender rights.Footnote 12
This case note aims to analyse the Mirin ruling. It begins by presenting the facts of the case, the Advocate General’s Opinion, and the Court’s judgment. The analysis then focuses on the ruling’s significance, exploring possible underlying reasons for the Court’s different approach in this case from the more restrictive stance previously taken in cases involving the free movement of married same-sex couples and rainbow families under EU law. The broader implications of this ruling for the protection of transgender rights under EU law are considered, and some gaps in protection and points which have not been clarified by the ruling are also highlighted.
Before proceeding to the main analysis, I would like to provide an explanation regarding the terminology used in this case note. I am fully aware of the important distinction between sex – typically understood as a biological classification based on physical characteristics – and gender, which is a social and personal construct relating to an individual’s deeply felt experience of identity, including their roles, expressions, and self-perception.Footnote 13 In legal contexts, the term ‘sex’ is most commonly used to refer to both the sex and the gender identity of a person as officially recorded and recognised by law. This is also reflected in EU primary law, secondary legislation, and the case law of the European Court of Justice, including anti-discrimination cases involving transgender applicants, which make reference to ‘sex’ and to discrimination ‘based on sex’. For this reason, the term ‘legal sex’ is used throughout this case note to refer to the officially recorded sex of a person.Footnote 14
Factual background
M.-A.A., a transgender man born in Romania in 1992, was assigned female at birth and registered as such on his birth certificate. In 2008, he moved to the United Kingdom, and in 2016, he became a British citizen by naturalisation, while also maintaining his Romanian nationality. In 2017, M.-A.A. legally changed his name and title from female to male through a deed poll in the UK, and in 2020, he obtained a UK gender recognition certificate, confirming his male gender identity and legally recognising his sex as male for all legal purposes. In 2021, he requested the Romanian authorities to record in his birth certificate, entries relating to his change of first name and legal sex effected in the UK, and to issue him a new birth certificate including those new particulars. The Romanian authorities rejected his request on the ground that Romanian law only allows the change of name and sex on a person’s official documents if approval for this has been obtained by a final and irrevocable judicial decision before a Romanian court. This prompted M.-A.A. to challenge this rejection before the referring court, arguing that his inability to update these documents would restrict his right to free movement under EU law: the failure to bring his birth certificate into line with his name and legal sex as these were lawfully changed in the UK, would impede his right as a Union citizen to move freely between EU member states.
The Romanian court hearing the case considered that an interpretation of several EU law provisions was necessary and thus decided to make a reference for a preliminary ruling to the European Court of Justice. The questions referred asked, essentially, whether Articles 20 and 21 TFEU, read in the light of Articles 7 and 45 of the Charter,Footnote 15 preclude national legislation which requires the person concerned to bring new proceedings for a change of legal sex before the national courts, when that person has already successfully completed a procedure to that end in another member state of which he is also a national. The referring court also sought a clarification regarding the effects of Brexit on this question, given that the procedure for the change of legal sex was initiated in the UK before that state’s withdrawal from the EU and was completed after Brexit but during the transition period.Footnote 16
Advocate General’s Opinion
Advocate General Richard de la Tour delivered his Opinion on 7 May 2024.Footnote 17 He began by explaining that since the applicant is a Union citizen who has exercised free movement rights under EU law, the situation falls within the scope of EU law and, thus, Romania’s rules on updating civil status documents relating to sex or gender identity must comply with EU law.Footnote 18 When examining whether Romania’s refusal to recognise the applicant’s first name and legal sex – as these were lawfully changed in the UK – contravened EU law, the Advocate General recalled the main principles established in the Court’s case law on the cross-border recognition of surnames.Footnote 19 Transposing that case law to the facts of the present case, he concluded that such a refusal constitutes an unjustified restriction on free movement contrary to Article 21 TFEU.Footnote 20 However, the Advocate General sought to distinguish between the extent of the obligation imposed by EU law on member states with regard to the cross-border recognition of names, from the one imposed with regard to the cross-border recognition of a change of legal sex. Drawing on Coman Footnote 21 and V.M.A.,Footnote 22 and mindful of the division of competences between the EU and the member states,Footnote 23 the Advocate General explained that as regards the cross-border recognition of the applicant’s change in legal sex, the obligation imposed on the member states must be subject to certain limits.Footnote 24 In particular, Article 21 TFEU should be read as imposing an obligation of recognition only for ‘the identification details of the person concerned which are used in particular for his or her movement within the territory of the European Union, that is to say, with a view to the issue of an identity card or passport’.Footnote 25 The Advocate General further explained that such a:
solution would mean that it would not be mandatory under EU law to update civil status documents concerning family members of the person concerned in so far as such updating would entail subsequent recognition in civil registers of the marriage of persons of the same sex or of parent-child relationships established in respect of parents of the same sex, which cannot be imposed on Member States by EU law.Footnote 26
The Court’s ruling
The Grand Chamber of the Court delivered its ruling on 4 October 2024. The Court began by noting that ‘[a]s EU law currently stands, a person’s status, which is relevant to the rules on changing a first name and gender identity, is a matter that falls within the competence of the Member States’.Footnote 27 However, ‘in exercising that competence, each Member State must comply with EU law’, in particular the free movement provisions, which require member states to recognise ‘for that purpose, the civil status of persons that has been established in another Member State in accordance with the law of that other Member State’.Footnote 28
The Court then repeated its well-established reasoning,Footnote 29 that a member state’s refusal to recognise the name of a Union citizen who has exercised free movement rights, as determined in another member state, ‘is likely to hinder the exercise of’ the right to free movement stemming from Article 21 TFEU, as ‘[c]onfusion and inconvenience are liable to arise from a divergence between the two names used for the same person, since many daily actions, both in the public and in the private domains, require a person to provide evidence of his or her own identity’.Footnote 30 As regards the non-recognition of the change in legal sex made lawfully in another member state, the Court followed the same approach, holding that such non-recognition also amounts to a violation of EU free movement law: like a name, gender defines a person’s identity and personal status. Consequently, the refusal to amend and recognise the gender identity which a national of one Member State has lawfully acquired in another Member State is liable to cause “serious inconvenience” for that national at administrative, professional and private levels, within the meaning of the Court’s case law’.Footnote 31 This is because ‘there is a real risk’ – since the person will bear two different names and will be given two different identities – ‘of having to dispel doubts as to his or her identity and the authenticity of the documents submitted or the veracity of their content’.Footnote 32 The Court then emphasised the nature of the freedom of movement of persons not only as a fundamental freedom (stemming from Article 21 TFEU) but also as a fundamental right (enshrined in Article 45 of the Charter)Footnote 33 noting, in line with recent case law,Footnote 34 that ‘any restriction on the rights provided for in Article 21(1) TFEU necessarily infringes Article 45(1) of the Charter’.Footnote 35
The final part of the judgment examined whether Romania’s refusal to recognise a change in name and legal sex lawfully made in another EU member state could be justified. The Court answered this in the negative, focusing, mostly, on the obligations imposed on member states by Article 7 of the Charter (which protects, inter alia, the right to respect for private life), read in the light of the relevant case law of the European Court of Human Rights on Article 8 ECHR.Footnote 36 The Court noted that no specific reasons were put forward to justify Romania’s legislation and stressed that any justification would need to respect the Charter.Footnote 37 It recalled that according to Article 52(3) of the Charter,Footnote 38 Article 8 ECHR – as interpreted in the case law of the European Court of Human Rights – constitutes the minimum threshold of protection when interpreting Article 7 of the Charter. In the Court’s words, according to European Court of Human Rights case law, ‘Article 8 ECHR protects a person’s sexual identity as a constituent element and one of the most intimate aspects of his or her private life’Footnote 39 and thus imposes positive obligations on states to protect transgender persons against arbitrary state interference. This includes an obligation to provide a clear and foreseeable procedure for legal recognition of gender identity, which allows for a change of sex on official documents, in a quick, transparent and accessible manner.Footnote 40 However, as held by the European Court of Human Rights in X and Y v Romania,Footnote 41 the procedure laid down by the contested Romanian legislation does not satisfy the above requirements and is thus incompatible with Article 8 ECHR.Footnote 42 With regard, in particular, to situations like the one at issue in the main proceedings, where a transgender person who has exercised free movement rights requests the cross-border recognition of the change in legal sex effected in another EU member state, the Court noted that the procedure laid down in the Romanian legislation, cannot ‘constitute an effective means of enabling’ such a Union citizen ‘to assert his or her rights conferred’ by Articles 21 TFEU and 45 of the Charter, read in the light of Article 7 of the Charter, ‘since that procedure exposes that citizen to the risk that it may lead to an outcome contrary to the outcome before the authorities of the Member State which lawfully granted that change of first name and gender identity’.Footnote 43 Accordingly, the contested refusal amounted to a violation of Articles 20 and 21 TFEU, read in the light of Articles 7 and 45 of the Charter.
Thus, the Court held that, in circumstances such as those at issue in the main proceedings, member states are required to recognise a change in legal sex effected in another member state, by permitting recognition and entry in the birth certificate of that change. Accordingly, the Court in its ruling went further than it previously did in Coman Footnote 44 and V.M.A.,Footnote 45 where it imposed an obligation of mere recognition of the effects of a civil status established in another member state, without obliging member states to amend their national civil status records or transcribe foreign documents. In doing so, however, the Court did not impose any express limitation on the scope of that obligation. This approach stands in contrast to the more restrictive view of the Advocate General, who argued that the full recognition should be confined to the change of national documents establishing the identity of the person concerned, and should not extend to documents that establish or certify family relationships. Nevertheless, since the recognition sought in Mirin concerned identity documents only, it remains unclear whether the obligation to fully recognise a change in legal sex, and to enter that change into national civil status records, applies unconditionally, or whether it is implicitly limited to certain purposes – a point to which I shall return below.
Analysis
Placing the case in context: the protection of the rights of transgender persons under EU law prior to Mirin
2026 will mark the 30th anniversary of the Court’s first ever ruling on transgender rights in P v. S and Cornwall.Footnote 46 In that case, which originated from a reference for a preliminary ruling made by a UK court, the European Court of Justice held that discrimination arising from the ‘gender reassignment’ of a transgender person constitutes discrimination based on sex.Footnote 47 According to the Court, the transgender applicant who was dismissed from her job on the ground that she intended to undergo ‘gender reassignment’ surgery was ‘treated unfavourably by comparison with persons of the sex’ to which she ‘was deemed to belong before undergoing gender reassignment’.Footnote 48 The Court’s relatively progressive stance in this decision has been widely praised, but is also often contrastedFootnote 49 with its disappointing ruling in Grant,Footnote 50 delivered two years later, where it focused on the ‘equal misery’Footnote 51 argument, and declined to hold that discrimination based on sexual orientation is also a form of sex discrimination prohibited by EU law.Footnote 52
Since P v. S and Cornwall, the Court has issued rulings in three more cases, also originating from the UK, all addressing the application of EU anti-discrimination law to transgender persons. In K.B. Footnote 53 and Richards,Footnote 54 at issue was, in essence, the UK’s failure to provide a legal framework for the recognition of the gender identity of transgender persons who had undergone gender affirmation surgery. This lack of recognition resulted in the denial of entitlements – specifically, a survivor’s pension in K.B. and a retirement pension in Richards – they could have enjoyed if they were legally recognised as belonging to the sex matching their gender identity. The Court held that the refusal of the entitlements amounted to discrimination based on sex prohibited under EU law. In Richards, in particular, the Court considered that transgender persons were treated less favourably than cisgender persons who belonged to their post-operative sex.Footnote 55
More recently, in MB,Footnote 56 the Court was again confronted with a reference for a preliminary ruling originating from the UK. However, unlike in the previous cases, at issue was not the lack of a national legal framework allowing the legal recognition of gender identity (since the UK had by then introduced such a framework), but rather one of the preconditions for legal gender recognition, namely, the requirement that transgender persons who were married, should apply to have their marriage annulled. On the facts of the case, this condition meant that a married transgender woman who had undergone gender affirming surgery but chose to remain married, was denied legal recognition in her post-operative sex and thus could not claim the entitlements that were granted to cisgender women who were in a similar position (i.e. they were also married). This, according to the Court, amounted to discrimination based on sex.Footnote 57
The above case law is important,Footnote 58 as it takes a broader and more inclusive approach towards sex-based discrimination than that taken in the Court of Justice’s earlier case law in this area, by effectively (though tacitly) replacing the narrow notion of sex with the wider one of gender.Footnote 59 This shift enables the Court to extend the prohibition of sex-based discrimination beyond cases involving differential treatment between men and women in comparable situations, to include instances where a person’s gender identity (which differs from their legal and biological sex) is the cause of their less favourable treatment.Footnote 60 This case law also makes it clear that EU member states cannot completely evade EU scrutiny by claiming that the regulation of sex assignment at birth and legal gender recognition lie beyond the scope of EU competence: while member states do retain the freedom to regulate these matters, when their actions relate to situations falling within the scope of EU law, they must ensure compliance with its provisions. This adds an extra layer of European ‘supervision’, additional – and complementary – to the one emerging from the obligations imposed by the ECHR.Footnote 61 In particular, as will be seen in more detail below, the European Court of Justice in its case law appears to have built on the obligations that the European Court of Human Rights has imposed on ECHR signatory states (which include all EU member states), regarding the need to establish a national legal framework which allows the legal recognition of the gender identity of transgender persons and satisfies certain minimum procedural requirements.
Nonetheless, although the above European Court of Justice case law is undoubtedly positive from a transgender rights perspective, its scope remains somewhat limited.Footnote 62 Criticism has been directed at its ‘medicalised and binary narrative’,Footnote 63 which reinforces a rigid binary understanding of sex and gender. This is largely because the Court’s anti-discrimination case law to date has focused on transgender individuals who have undergone medical transition and identify strictly within the male/female binary, thereby implicitly presenting medical intervention and binary gender identity as prerequisites for legal recognition and protection. Moreover, the Court’s insistence in this case law on relying on a comparative approach has been identified as a key flaw, both due to the inherent difficulty in identifying a suitable comparator and the Court’s specific choice of comparators in these cases.Footnote 64 Another significant limitation is that in all four cases mentioned above, the transgender applicants had undergone gender-affirming surgery. This raises the question whether the same principles would also apply in cases involving transgender persons who chose not to – or are unable to – undertake a process of medical transition,Footnote 65 a question which, in light of the recent ruling in Deldits, is now likely to be answered in the affirmative.Footnote 66
Ultimately, this case law can be viewed as a convenient yet incomplete solution for protecting (some) transgender persons from discrimination under EU law, as it addresses the issue without, however, explicitly acknowledging their position in legal texts. In other words, the drafters of the EU Treaties could have explicitly included gender identity and gender expression as prohibited grounds of discrimination, much as they did for sexual orientation in 1999.Footnote 67 Such a step would have ensured greater visibility for transgender persons and demonstrated a stronger EU commitment to protecting them from discrimination.Footnote 68 It has, nonetheless, not been taken to date, despite clear suggestions to this effect.Footnote 69
Why Mirin is a landmark judgment: the obligation to afford full cross-border recognition to the change of legal sex by amending national civil status records
In Mirin, the European Court of Justice was called upon for the first time to examine the obligations imposed by EU law regarding the cross-border recognition of changes to legal sex effected in another member state. In that respect, it can be grouped together with Coman Footnote 70 and V.M.A.,Footnote 71 which addressed, respectively, the cross-border recognition of same-sex marriages and of the parenthood of children born to same-sex couples.
As extensively documented,Footnote 72 the Court adopted a rather cautious approach in both Coman and V.M.A., limiting the obligation of recognition to situations involving the exercise of free movement rights. In Coman, the Court held that a same-sex marriage contracted in Belgium had to be recognised in Romania, solely for the purpose of granting a residence right to the third-country national spouse of a Union citizen who had exercised free movement rights; i.e. Romania was not required to transcribe the marriage certificate or to recognise the marriage as valid, under its national law. Similarly, in V.M.A. the Court required Bulgaria to recognise the contents of a Spanish birth certificate listing a same-sex couple as the child’s parents, but only to the extent necessary to enable the child and/or the parent holding Union citizenship to exercise their free movement rights; thus, EU law did not require Bulgaria to issue a birth certificate for the child recognising the parent-child relationship between the child and her two same-sex parents as established in Spain. In both cases, therefore, the obligation to recognise a family status created in another member state was narrowly framed as a functional requirement of EU free movement law, without requiring the transcription of foreign civil status documents or the updating of national civil registers.
The Court in Mirin, however, held that member states are required to fully recognise a change in legal sex effected in another member state, by recording it in its civil register and amending the Union citizen’s birth certificate. Mirin thus marks a significant development in the Court’s case law. Unlike Coman and V.M.A., where the obligation of recognition was limited to ensuring the effectiveness of free movement rights, the Court in Mirin appears to require full and unconditional recognition of a change of legal sex effected in another member state. In particular, the Court held that the member state where recognition is sought must not only acknowledge the change but also record it in its civil register – thereby recognising its legal effects across the board and for all legal purposes. This goes beyond merely enabling the exercise of EU rights and entails substantive incorporation of the foreign civil status into the national legal order. The Court explicitly based this approach on its earlier case law concerning the recognition of surnames,Footnote 73 relying on the argument that non-recognition – and the resulting divergence in surnames, or in this case, legal sex – across member states, is liable to cause ‘serious inconvenience’ which can impede the effective exercise of free movement rights.Footnote 74 Mirin thus signals a shift from the Court’s previously cautious, functional, model of recognition to one rooted more firmly in the principles of mutual trust, legal certainty, and respect for individual identity within the EU legal order.
Mirin can thus be considered a landmark judgment, as transgender persons who have completed a legal gender recognition procedure in one member state are now assured that, wherever they move within the EU, their (new) legal sex will be recognised and recorded in civil status documents in the member state to which they move. This recognition applies regardless of the specific legal or procedural requirements governing legal gender recognition in the member state where it was originally acquired, and irrespective of whether those requirements differ – slightly or significantly – from those of the member state where recognition is sought. From the perspective of transgender rights, therefore, this represents a major advancement, offering unprecedented certainty and continuity of legal status across borders.
Why Mirin went further than Coman and V.M.A.: the (possible) impact of Strasbourg jurisprudence
The European Court of Justice’s willingness in Mirin to impose an obligation on member states to recognise a change in legal sex effected in another member state – at least, as will be explained below, for the purposes of personal identification – marks a departure from the more cautious, effects-based approach adopted in Coman and V.M.A. In those earlier cases, the Court limited the obligation of recognition to what was strictly necessary to ensure the effectiveness of free movement rights, stopping short of requiring member states to amend their civil registers or to give full legal effect to statuses acquired abroad. By contrast, in Mirin, the Court appeared to require not just functional recognition, but formal and unconditional entry of the change in the national civil register of the member state where recognition was sought.
This doctrinal shift may reflect a deliberate choice by the Court, based on the broader European legal context and, in particular, on the standards already established under the ECHR. Since the landmark ruling in Goodwin v United Kingdom,Footnote 75 the European Court of Human Rights has made clear that ECHR signatory states – which include all EU member states – are under a positive obligation under Article 8 ECHR to provide access to legal gender recognition.Footnote 76 While the European Court of Human Rights allows member states a margin of appreciation regarding the specific procedures for recognition, it has also defined certain minimum substantive and procedural safeguards. In A.P., Garçon and Nicot v France Footnote 77 and X and Y v Romania,Footnote 78 the European Court of Human Rights held that legal gender recognition procedures must not require individuals to undergo sterilisation or gender-affirming surgery, and that they must be clear, foreseeable, and accessible in practice. In its judgment in Mirin, the Court even referred to X and Y v Romania to support its reasoning. It rejected Romania’s argument that the applicant could re-initiate a legal gender recognition process before a domestic court, on the ground that such a procedure did not meet the minimum standards of clarity and accessibility required under the ECHR. In doing so, the European Court of Justice implicitly acknowledged the normative weight of Strasbourg case law and used it to reinforce its own conclusion that Romania could not avoid recognition of a legal status acquired abroad by referring the applicant back to an inadequate domestic process.
The existence of this ECHR-based minimum standard of equivalence across all EU member states may have provided the European Court of Justice with the normative foundation for adopting a more assertive approach in Mirin. Because all member states – through their Council of Europe membership – are already required to provide a legal framework for gender recognition, and because that framework must comply with defined minimum procedural and substantive safeguards, the European Court of Justice could reasonably assume a baseline level of compatibility among national systems. As a result, the Court may have felt more ‘comfortable’ in imposing a robust obligation of mutual recognition in this context – an obligation that appears to operate without allowing member states to reassess or question the conditions under which gender recognition was granted in another member state.Footnote 79
By contrast, no such equivalence exists with respect to same-sex marriage or parenthood by same-sex couples. While ECHR signatory states must offer some form of legal recognition of same-sex couples,Footnote 80 they are not required to permit same-sex marriage.Footnote 81 Similarly, the ECHR has to date been interpreted as not imposing any obligations on signatory states to allow two persons of the same sex to be recognised as the joint legal parents of a child.Footnote 82 This lack of a basic common standard across member states probably explains the European Court of Justice’s more cautious stance in Coman and V.M.A., where it confined recognition to the limited purpose of facilitating free movement rights, avoiding the deeper legal and political implications of requiring full domestic recognition of same-sex marriages or parenthood.
Recognition without limits? Interpreting Mirin and awaiting Cupriak-Trojan and Trojan
As explained above, the Advocate General in Mirin suggested that the obligation to recognise a Union citizen’s change of legal sex effected in another member state, should be held to apply only to the individual’s identification details used for the exercise of free movement within the EU. This includes, for example, the issuance of identity cards or passports, which are necessary for enabling Union citizens to move freely between member states, but does not include the updating of civil status documents of the family members of the person concerned (i.e. their spouse or their children) as ‘such updating would entail subsequent recognition in civil registers of the marriage of persons of the same sex or of parent-child relationships established in respect of parents of the same sex, which cannot be imposed on Member States by EU law’Footnote 83 – an approach reaffirmed in his subsequent Opinion in Cupriak-Trojan and Trojan, issued following the delivery of the judgment in Mirin.Footnote 84 Hence, as explained by another commentator, the solution proposed by the Advocate General in Mirin meant that ‘Romania must only account for the applicant’s change of identity in relation to his free movement across the borders. In all other aspects, including marriage and child-parent relations, the applicant will remain registered as a woman’Footnote 85 – a solution which, the Advocate General admitted, is ‘indeed not satisfactory’.Footnote 86
One might have expected the Court to adopt a similar approach and transplant to Mirin the same cautious approach it had adopted in Coman and V.M.A., especially since this was also the solution deemed most appropriate by its Advocate General. Had it done so, the Court would have explicitly confined the obligation to record the change in legal sex to civil registers concerning personal identification, without extending it to documents relating to family status. However, the Court chose not to take this path – or, at least, not in this instance.
The facts in Mirin involved a transgender man seeking recognition by Romania – his member state of nationality and birth – of a change in legal sex effected in the United Kingdom, his member state of second nationality and residence. The scenario was thus relatively straightforward, involving a request for recognition solely for purposes of personal identification. The case did not raise the more complex issues that would have arisen had recognition been sought in circumstances affecting family relationships: there is no indication that the applicant was married – where recognition of the change could have had the effect of converting an existing different-sex marriage into a same-sex one – nor that he was a parent, which might have led to a request to amend a child’s birth certificate to reflect his new legal sex, potentially requiring the registration of two persons of the same sex as the child’s legal parents. Accordingly, the facts in Mirin presented the Court with a rather uncomplicated scenario confined to identity documentation and without the need to engage with the more complex and politically sensitive issues that may arise in the family law sphere.
This, however, means that one may argue that the Court’s ruling is open to two possible interpretations. On a narrow reading, the Court’s unqualified wording could be understood as limited to the factual circumstances of the case: it imposed an obligation to fully recognise changes in legal sex for purposes of identification documents, but left open whether the same obligation would extend to situations involving family relationships. Under this interpretation, the Court refrained from expressly limiting the obligation because it was unnecessary to do so on the facts, leaving such clarification for a future case involving more complex issues, such as the recognition of same-sex marriages or parent-child relationships following a change in legal sex. Alternatively, on a broader reading, the Court’s judgment could be understood as establishing an unqualified obligation to fully recognise a change in legal sex for all legal purposes, by entering the change in both identity documents and documents that record family ties.
Judged from the perspective of whether an obstacle to free movement exists, the latter, broader, reading according to which EU law requires the cross-border recognition of changes in legal sex for all legal purposes is undoubtedly correct: refusing to recognise a person’s (new) legal sex for all legal purposes, would lead to discrepancies not only across member states but also within member states, causing serious inconvenience in that person’s daily life, which can, inter alia, impede their ability to exercise free movement rights.
At the same time, however, this broader obligation would put the Court in a difficult position. It would require – as acknowledged by the Advocate General – member states that do not permit same-sex marriages or the joint legal parenthood of a child by two persons of the same sex to recognise such statuses when validly established in another member state. In effect, even though same-sex marriage or same-sex parenthood would still not be able to be established under national law in these jurisdictions, member states would nonetheless be compelled to acknowledge and give legal effect to these statuses when ‘imported’ from other member states. This would expose the Court to criticisms of introducing recognition of same-sex marriages and same-sex parenthood ‘through the back door’, even though these are matters which concern substantive family law, which is an area that continues to fall within exclusive member state competence. Moreover, such a situation would create a stark asymmetry: a status – (same-sex) marriage or parenthood – unavailable to individuals in purely internal situations would nevertheless be recognised for those exercising free movement rights. Given that the recognition of family ties implicates fundamental rights, particularly the right to family life, this internal asymmetry could give rise to claims of discrimination under both European law and national constitutional guarantees.
The above analysis demonstrates why Mirin presented a difficult case for the Court, and why it may have opted to deliver a deliberately vague ruling, refraining from defining the precise extent of the obligation imposed and reserving a fuller articulation of its extent for a future case in which the facts would require such clarification. Such a case, however, is not merely a distant prospect but is already there on the horizon. The pending case of Cupriak-Trojan and Trojan, concerns the refusal of the Polish authorities to enter into the Polish civil registry a certificate of a same-sex marriage contracted in Germany between a Polish citizen and a dual Polish and German citizen. It therefore requires the Court to address directly whether a same-sex marriage lawfully contracted in one member state must be recognised in another, not only for the purpose of exercising free movement rights, but also for broader legal purposes, by including its entry in the national civil registry.Footnote 87 Should the Court – contrary to the view expressed by Advocate General de la Tour in his Opinion in that case – hold that EU law requires the cross-border recognition of same-sex marriages as marriages and without any limitations, this would also clarify that in Mirin, the obligation to recognise changes in legal sex likewise applies across all legal contexts, including for purposes requiring the amendment of civil status documents that record an individual’s family ties. Such a ruling would represent a landmark advancement for the protection of LGBT rights within the EU legal order, and could be seen as the EU’s own ‘Obergefell moment’.Footnote 88
Some points which have not been clarified in Mirin
Mirin involved a transgender EU citizen, who changed his name and legal sex in the member state where he resided and held his (second) nationality, who had exercised free movement rights, and who sought recognition of his (new) name and legal sex in the member state of his (first) nationality. It remains unclear, however, whether the ruling will have broader applicability and will benefit transgender persons whose circumstances do not align with this specific factual scenario.
First, it is almost certain that, given the free movement rationale underpinning the case, the obligations arising from this ruling will be limited to situations which involve EU citizens and the exercise of free movement rights within the EU. Thus, what will be the position of transgender third-country nationals who have undergone a legal gender recognition process in an EU member state? Will they still not be able to rely on EU law to require EU member states to recognise that change?
Second, and related to the above, it remains unclear whether the obligations established in Mirin would extend to cases where the change in legal sex was initially acquired in a third country rather than an EU member state. An obstable to free movement – based on the ‘serious inconvenience’ argument – would arguably arise if a change in legal sex, completed in an EU member state or recognised there following its completion in a third country, was not recognised in another member state. However, Mirin, concerned the first, simpler, scenario where the change in legal sex was first effected in an EU member state. As such, it leaves open the question whether the same obligation of recognition would arise if the change had originally occurred in a third country and was later merely recognised in an(other) EU member state.
Third, the European Court of Justice in Mirin did not specify whether the EU citizen needs to have a genuine connection to the member state where the change in legal sex was completed, in order to trigger the obligation of recognition by another member state. In Coman, following established case law,Footnote 89 the Court held that for Union citizens to claim family reunification rights in their member state of nationality, they must have created or strengthened family life during a period of ‘genuine residence’ in the member state from which they return.Footnote 90 The Court in Mirin, however, did not impose any such requirement of a genuine connection to the member state where the change in legal sex was effected. The applicant in Mirin was both a national and a resident of the member state where the legal gender recognition was completed (the United Kingdom), leaving no question of seeking to circumvent restrictive national laws through strategic reliance on EU free movement rights. However, the judgment remains silent on whether such a requirement would apply in a case involving weaker or no ties to the member state where the gender recognition occurred.Footnote 91
The absence of such a requirement of sufficient connection could be viewed as potentially problematic in this context, due to the significant divergence among member states in their legal frameworks for gender recognition.Footnote 92 Procedures range from self-declaration systems to court proceedings, and include requirements for gender-affirming surgery, sterilisation, or termination of a pre-existing marriage, with some states lacking formalised laws altogether and relying on ad hoc or discretionary mechanisms. Moreover, in most member states non-binary persons have very limited or no access to legal gender recognition procedures. This diversity opens the door for transgender individuals with a genuine connection (e.g. residence or nationality) only to a member state with restrictive (or no) gender recognition laws, to exercise free movement rights, obtain recognition in a more favourable member state, and return to their home state seeking recognition of their new legal sex under the principles established in Mirin. This, however, is problematic for two reasons. First, such cases could be framed as an (ab)useFootnote 93 of free movement rights to bypass unfavourable or inexistent national laws.Footnote 94 Second, this approach may privilege those with the financial and logistical means to travel to another member state for gender recognition, creating an unjust disparity with those who lack the means to do so. That said, in practice, such concerns may be mitigated by the fact that most national legal frameworks on gender recognition already impose their own connection requirements, typically limiting access to those who hold their nationality or are lawfully resident in the member state concerned.
Conclusions
Undoubtedly, the European Court of Justice’s ruling in Mirin is a landmark decision and marks a significant advancement in the protection of transgender rights within the EU. Its importance stems not only from the fact that, for the first time, the Court addressed the rights of a transgender person in a context beyond discrimination, but also from its bold departure from recent rulings involving similarly sensitive issues.
As a direct consequence of Mirin, all EU member states are now required to recognise a change in legal sex effected in another member state – at least for purposes of personal identification – and to amend their civil status records accordingly. Unlike in Coman and V.M.A., where the Court limited the obligation of recognition to what was strictly necessary to ensure the effectiveness of free movement rights, in Mirin it appears to have gone further, imposing a more robust and unconditional duty of formal recognition. In doing so, the Court has ensured that transgender individuals who have obtained legal gender recognition in one member state can rely on that recognition throughout the Union and for all legal purposes, thereby enabling them to exercise their free movement rights without facing discriminatory obstacles or legal uncertainties.
The Court’s willingness to impose this stronger obligation may be explained by the existence of a minimum common standard in Europe with regard to legal gender recognition: all EU member states, as signatories to the ECHR, are already required to provide a legal framework for gender recognition and to respect certain minimum procedural and substantive safeguards defined by the European Court of Human Rights. This level of normative convergence – absent in the context of same-sex marriage or parenthood – may have enabled the Court to adopt a more confident stance. By contrast, the absence of such a common standard on same-sex marriage or parental recognition continues to limit the Court’s scope for imposing stronger mutual recognition obligations in those domains.
Nevertheless, as this analysis has highlighted, several critical issues remain unresolved. First, given that Mirin is a free movement case and thus concerns the rights of transgender EU citizens, the position of transgender third-country nationals who have undergone legal gender recognition remains unclear. Second, while Mirin concerned a change in legal sex completed in an EU member state, it is uncertain whether the same obligation of recognition extends to situations where the change was initially effected in a third country. Moreover, the Court notably refrained from imposing any requirement of a genuine connection between the individual undergoing legal gender recognition and the member state in which that recognition took place. Such a requirement could serve to prevent instances where transgender persons from member states with restrictive or non-existent gender recognition procedures circumvent national laws by acquiring recognition in a more favourable jurisdiction before returning to their home state and invoking Mirin to demand recognition. However, the Court’s silence on this issue may reflect its reliance on existing domestic safeguards, as most national legal frameworks already require applicants to demonstrate a sufficient connection – such as nationality or lawful residence – before allowing access to legal gender recognition procedures.
Perhaps the most intriguing question arising from Mirin, nonetheless, is whether the Court’s expansive approach will prompt a reconsideration of its stance with regard to the cross-border recognition of same-sex marriages and rainbow families. In fact, as noted above, a case is currently pending (Cupriak-Trojan and Trojan) which will require the Court to determine whether EU member states are obliged to recognise same-sex marriages contracted in another member state for all legal purposes. Should the Court adopt a similarly expansive approach, this would not only clarify the scope of Mirin – confirming that the obligation of recognition of a change in legal sex applies beyond identity documents to family status – but would also represent a significant step towards equality in cross-border family recognition within the EU. However, such a ruling could provoke backlash, especially in member states where same-sex marriage remains constitutionally prohibited. Therefore, as the Court continues to navigate these evolving questions, striking a balance between individual rights and member state sovereignty will remain a central challenge.
Acknowledgments
I am grateful to the anonymous reviewers for their very helpful comments on an earlier draft of this case note.
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