Advocate General: Legal recognition of gender identity must not be conditioned on surgery
Advocate General Richard de la Tour issued an Opinion for a case referred by the Bulgarian Supreme Court of Cassation concerning whether a transgender person’s gender identity must be recognised in birth certificates and identity documents. The case involves a Bulgarian national assigned male at birth who now lives and presents as a woman. Bulgarian courts denied her request to change recorded sex, name and personal identification number because domestic law requires gender reassignment surgery for legal recognition.
The Advocate General proposes that EU law precludes national rules that block legal recognition of gender identity when no surgery has been performed. He argues such national provisions conflict with the rights of EU citizens to move and reside freely, since a mismatch between appearance and official documents can undermine the practical effectiveness of those rights and expose individuals to obstacles and discrimination.
He also highlighted that national legislation must be interpreted in conformity with EU law even before member states enact legislative or constitutional reforms. That means courts should prefer an interpretation consistent with EU rights and freedoms where possible, ensuring fundamental rights are protected without awaiting parliamentary change.
Finally, the Advocate General emphasised that conditioning legal registration of gender identity for identity cards or passports on surgery would infringe the right to respect for private life. From a data protection and GDPR perspective, accurate and respectful identity records are central to dignity, lawful processing of personal data and avoiding excessive, irrelevant or intrusive requirements linked to health interventions.
