A client of the Transvanilla Transgender Association applied for a name and gender marker change before 2020. At that time, the Hungarian authorities rejected her application on the grounds of legal deficiencies. However, the Budapest-Capital Regional Court, pointed out in this case that it is the responsibility of the state to establish procedural frameworks which ensure the exercise of fundamental rights and the Court agreed with the fact that the applicant suffered serious psychological and health damages.
In today's ruling, the Court confirmed that the right to respect for private life under Article 8 of the Convention extends to gender identity, as a component of personal identity. This holds true for all individuals, including transgender people who have not undergone gender reassignment treatment or who do not wish to undergo such treatment.
In addition to prohibiting arbitrary interference by public authorities, Article 8 of the Convention imposes a positive obligation on the State: to adopt specific measures, legislative framework and remedies necessary for the effective exercise of the right. The Court noted that from 29 May 2020, Hungarian law does not allow for a change of data on a person’s sex at birth in the register. Although the case concerns a procedure that was initiated before the adoption of Article 33, the Court found it relevant to point out that under the rules currently in force, the applicant is not anymore in the position to lodge a new request for the legal recognition of his gender identity.
The Court reaffirmed that under Article 8, Member States are expected to ensure that procedures for the legal recognition of trans persons are quick, transparent and accessible. During the period covered by the case, there was no clear legal provision explicitly regulating legal gender recognition, but it was possible to do so through an administrative procedure. The shortcomings of the procedure were highlighted by the Commissioner for Fundamental Rights in an investigation launched at the request of Transvanilla in 2016, but the changes introduced in 2017 in response to the Commissioner's recommendation have not improved the inconsistent practice. The lack of clear guidance on the documents to be submitted, the competent authorities and the medical documentation required was an obstacle to the exercise of the right to legal gender recognition.
The ECtHR rejected the Government's arguments that judicial review could have provided the applicant with a remedy for the problems arising from the lack of clarity in the rules. The Court adopted the conclusions of the Commissioner for Fundamental Rights from 2021 (case no. AJB-1846/2021) confirming the above, as well as the parallel reasoning of 6/2018 of the Constitutional Court. The applicant's position would not have been changed by the subsequent positive decisions of the Curia, which were made one year after the application was filed (in other cases). Nor do they support the conclusion that there was an established practice of legal gender recognition in Hungary during the period in question.
“The Court found that the circumstances of the present case revealed legislative gaps and serious deficiencies that left the applicant in a situation of distressing uncertainty vis-à-vis his private life and the recognition of his identity. As stated above, this situation, for which the national authorities bore sole responsibility, is having long-term negative consequences for the applicant’s mental health. The foregoing considerations are sufficient to enable the Court to conclude that the legal framework in force at the material time in the respondent State did not provide “quick, transparent and accessible procedures” for the examination of a request to change the registered sex of transgender people on birth certificates.”
In Hungary, since the enactment of Article 33 in 2020, there is no possibility of legal gender recognition and the change of first name. However, it is less discussed that, before the prohibition of legal recognition of gender, no decisions had been taken on the applications submitted for years. This is a serious violation of the fundamental rights of trans people and leaves those affected in a perpetually vulnerable and marginalised position.
In Hungary, since the enactment of Article 33 in 2020, there is no possibility of legal gender recognition and the change of first name. However, it is less discussed that, before the prohibition of legal recognition of gender, no decisions had been taken on the applications submitted for years. This is a serious violation of the fundamental rights of trans people and leaves those affected in a perpetually vulnerable and marginalised position.
"Cases won in international forums like this are very important for a number of reasons. First and foremost for our clients who can move forward in their lives after many years of litigation. It is also an important message for our community, as it is a clear statement from the representatives of international law that they are voting in favour of protecting the rights of trans people. And last but not least, it is a message to the Hungarian state, which is still in debt to ensure that its citizens have the possibility to change their gender and name", said Dr. Andrea Sebestyén, Program Manager of Transvanilla Transgender Association.
Read the full decision here: CASE OF R.K. v. HUNGARY
Press contact: Dr. Bea Bodrogi, lawyer and legal programme manager of Transvanilla: Ez az e-mail-cím a szpemrobotok elleni védelem alatt áll. Megtekintéséhez engedélyeznie kell a JavaScript használatát.
Transvanilla Transgender Association is available at Ez az e-mail-cím a szpemrobotok elleni védelem alatt áll. Megtekintéséhez engedélyeznie kell a JavaScript használatát.