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Announcement: The Constitutional Court Defended the Rights of a Transgender Refugee

Alkotmánybíróság

The Constitutional Court made an important decision last week regarding the case of a transgender individual recognized as a refugee. They decreed that the Hungarian state fails to regulate the legal gender recognition of non-Hungarian citizens legally residing in Hungary. Therefore, the Constitutional Court summoned the Parliament to fulfill their legislative task by December 31, 2018.

Though the Constitutional Court dismissed the complaint of the foreign transgender man as an individual case, the decreeis still highly significant, because it calls attention to the need for regulating the procedure of legal gender recognition according to international human rights standards.

The proponent of the constitutional complaint had been persecuted in his homeland because of his gender identity and due to this, was given refugee status in Hungary. The proponent submitted a petition for gender recognition to the Office of Immigration and Nationality.

The Office of Immigration and Nationality rejected the petition, citing that change of gender must be documented on a new birth certificate issued by the respective registrar’s office of one’s birthplace; in this case, however, there is no possibility to do this, since the proponent has no Hungarian birth certificate. The foreign citizen submitted a revision request, but that was rejected by the court, which cited that there is no law that can appoint an authority entitled to make a meaningful decision in this case. Following this, the proponent turned to the Constitutional Court.

The Court rejected the constitutional complaint, because courts cannot act directly based on basic laws, but must interpret and apply legislations accordingly. Therefore, this case cannot be evaluated because no legislations apply that can be interpreted by a judge. At the same time, the judicial body also determined that the procedures connected to change of name and gender only applies to Hungarian citizens, and thus, the legislator differentiated between persons of Hungarian and non-Hungarian citizenship in a way that offended the right of human dignity.

In a parallel statement, Judge Tamás Sulyok found it essential to call the attention of the legislator to the fact that “the change of name connected to the change of gender for Hungarian citizens regulated on a governmental level requires revision. In addition to the re-assessment of whether the regulation is satisfactory at the level of source of law, it is important to emphasize that the necessity of legal certainty makes it the responsibility of the state to ensure that the rules of the law are clear, unambiguous, and, with regards to their function, are predictable and foreseeable for the addressees of the norm.”

He also notes that, “however, in report number AJB-883/2016 issued by the Office of the Commissioner for Fundamental Rights, based on the effective regulations regarding the legal recognition of gender, the role of the General Department of the Ministry of Human Resources is not clear; the legal quality of the ‘Briefing’ found on the website of the Budapest Metropolitan Government Office is questionable; and furthermore, if a case results in a ‘denied request’ – lacking formal decision – the fundamental right of legal remedy cannot be implemented, and this is quite problematic.”

The 2017 updated publication, originally issued by our Association in 2015 regarding the international practice of legal gender recognition and the human rights norms connected to it, also called attention to these same shortcomings and the need for regulations. Based on this, we submitted a petition to the Office of the Commissioner for Fundamental Rights.

In 2016, Dr. László Székely wrote a comprehensive report in response to the individual complaint submissions of our Association and two minors regarding the legal recognition of gender.

Case No. AJB-883/2016

“In 2015, one comprehensive and two individual complaint submissions arrived at my Office which called attention to anomalies in the regulations pertaining to the legal recognition of gender.
According to the complaint submission of the Transvanilla Transgender Association, the legal recognition of gender is theoretically possible in Hungary at present, but the process associated with it – due to the medicalizing approach – has no legal regulations. The Association furthermore objected to the fact that in practice, there is no authoritative, comprehensive, available information recognized by the participating state bodies regarding the procedure of gender and name change, the documentation required for this, the procedure deadlines, and available legal remedy possibilities or methods for this. Furthermore, they objected to the fact that altering identification papers and those documents certifying the professional qualifications of individuals who have undergone gender change is, at the moment, disproportionately challenging.”

Following the publication of the reportthe report, starting on November 14, 2016, the procedures connected to the legal recognition of gender were suspended for an unspecified duration and without any official explanation. Therefore, our Association turned to the European Court of Human Rights in Strasbourg; we represented five transgender individuals and submitted a petition. The proceedings are still in progress.

On October 25, 2017, our Association joined the Office of the Commissioner for Fundamental Rights to organize a series of round-table discussions on the occasion of the International Day of Action for Trans Depathologization, focusing on the validation of the fundamental rights of transgender individuals. The goal of the jointly organized forum was to create a possibility for professional dialogue about the legal dilemmas affecting transgender individuals, and to connect domestic and international experts who deal with these issues on various levels, thus contributing to the formulation of legal regulations and development of these in practice.

In January of 2018, the evaluation of applications for gender recognition began again. This was based on a government regulation issued on December 20, 2017, and our formulated objections are in conjunction with the present decision of the Constitutional Court.

“Legal certainty is required for the legal recognition of gender, and for this, a legally regulated framework is needed,” said Barnabás Hidasi, President of the Transvanilla Transgender Association. “This is important, so it can be predictable, clear and simple for those concerned. It is crucial that the role of state bodies also be well defined, and for legal procedure guarantees to be set down. We need a quick, transparent and accessible procedure for the legal recognition of gender. While the form of this procedure is secondary, the result needs to be practical and effective; it must protect the right of transgender individuals to their own private lives. Ideally, this would mean a simple, administrative process, and not one that is healthcare-oriented. It would make it possible for those concerned to have their data and documents changed as quickly as possible. The quick, accessible and transparent legal recognition of gender prevents discrimination, protects one’s right to privacy, and is the basis for human dignity.”

Transvanilla Transgender Association
25 June 2018

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