Part II: Recognising changes in gender identity under EU Law: The impact of Mirin and Deldits for legal gender recognition across borders

This contribution consists of a series of three interconnected blog posts that explore whether, and to what extent, EU law can protect the right of trans European citizens to have their gender identity legally recognised across the borders of EU Member States. Currently, procedures and conditions for Legal Gender Recognition (LGR) are governed by national laws, and the EU lacks direct legislative competence in this area. As a result, the absence of harmonised rules means that trans Union citizens who move to or reside in another Member State risk having their legal gender identity inconsistently recorded or misrecognised.

Part 1 examines the limitations of EU law in addressing fundamental rights violations in areas governed exclusively by national legislation. These limitations stem from the EU’s constitutional framework, which restricts its legislative powers to those explicitly conferred by the Treaties. Nevertheless, EU law can play a role in protecting fundamental rights when such violations hinder the functioning of the internal market or create obstacles for Union citizens’ rights to move and reside freely within the EU.

Part 2 discusses Case C‑4/23, Mirin, in which the Court of Justice of the European Union (CJEU) held that Member States must mutually recognise civil status decisions, including those related to gender identity changes. This mutual recognition is essential to ensure that Union citizens can effectively exercise their free movement rights.

Part 3 explores the obligations of Member States to recognise the lived gender identity of trans individuals who have not exercised their EU free movement rights. In Case C‑247/23 Deldits, the CJEU ruled that the right to rectification of inaccurate personal data (enshrined in the General Data Protection Regulation - GDPR) extends to situations where official records do not reflect an individual’s lived gender identity. In such cases, trans individuals have the right to request that their gender identity data be corrected.