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Transvanilla welcomes the Hungarian ombudsman’s report on legal gender recognition in the country

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In Hungary, trans people have the possibility to change their legal gender, but the process is not in line with basic human rights standards such as the right to self-determination and the right to a fair trial. In his 29-page report published last week, Hungary’s Commissioner for Fundamental Rights, László Székely, asked the Minister of Human Resources to address these regulatory problems in collaboration with relevant NGOs and professional organisations.

 The Office of the Commissioner was reacting to petitions submitted by the Transvanilla Transgender Association and two young individual complainants. Transvanilla complained that whilst there is a practice of changing gender markers and first names for trans persons, there is no legislation and or information available on the deadlines, remedies and required documents for this procedure. The 17-year-old complainants (both clients of Transvanilla) indicated that, despite having medical statements that supported their change of name and gender, the Ministry of Human Resources has – after a long waiting period – declined their requests.

The ombudsman in his report makes it clear that gender identity is one's personal experience of one's own gender. In the case of trans persons, the basis for the definition of their legal gender is their own self-determination and identity, regardless of their sexual characteristics. One of his first important remarks is that legal recognition of gender does not assume that trans specific medical procedures are being taken and does not necessarily imply a logical connection with these procedures. The gender identity of trans persons might not be in line with their external sex characteristics. In such cases, the possibility of changing the legal gender is not a medical issue, but the realization of human dignity and the right to self-determination.

The role of the Ministry of Human Resources in current practice is to examine the required mental diagnosis (F64.00 Transsexualism) and to issue an expert opinion. However, the rules remain vague, as there is no uniform practice with regards to the source and content of the diagnosis to be obtained. Because there is no information available on the required documents and as the practice is rather ad hoc, there is often a request for additional documentation which results in long proceedings. This exposes the persons concerned to an unnecessarily prolonged uncertainty, while remedies are unpredictable. The Commissioner concluded that the lack of legislation on a clear framework, guarantees, responsibilities and tasks raises concerns in relation to both fundamental rights and legal certainty.

The report also highlights that, with regards to regulation, it is crucial that the change of name and gender be treated primarily as a legal rather than a medical issue. The Hungarian practice, in line with current international standards, does not require other interventions than a medical diagnosis; still the recognition of legal gender and access to trans-specific health care can be obtained in the same process.

Requests from persons under 18 are denied even if they meet all the criteria. In the reported individual cases, it was only after four or five months and several inquiries that the complainants were informed of the denial of their requests. According to the Commissioner, the duration of the proceedings violated the right to a fair trial, caused uncertainty, prolonged psychological trauma and resulted in a significant financial burden. The report draws attention to the importance of stating a minimum age limit, if any, in the legislation.

The report also highlights the right to new documents and certificates reflecting the changed gender and name. According to the Ombudsman’s inquiry in this regard, the concern is that there is no way to change the data in documents issued by institutions of higher education.

The Commissioner has asked the Minister of Human Resources to draft legislation which will ensure legal certainty and a fair trial for trans people wishing to choose their name and gender according to their gender identity, and to initiate a legislative amendment to allow trans persons to change their name in higher education certificates in order to reflect their birth certificate and real gender identity. The ombudsman significantly highlighted in his report the need to separate the process for legal gender recognition and for access to trans-specific health care.

The report can be read here: ajbh.hu

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