The Court of Justice of the European Union (CJEU) ruled that the rectification of data relating to a person's gender identity in the EU cannot be made conditional on proof of having undergone surgery.
In its opinion, in response to a Hungarian preliminary ruling, the court emphasized that a Member State may under no circumstances make a person's exercise of this right to rectification of data conditional on providing proof of having undergone sex reassignment surgery.
This requirement, the court stated, violates the essence of the right to the integrity of the person and the right to respect for private and family life, enshrined in the Charter of Fundamental Rights of the European Union.
Furthermore, this requirement is neither necessary nor proportionate to ensure the reliability and consistency of a public register, such as the asylum register, since a medical certificate, including a prior psychological diagnosis, may constitute relevant and sufficient evidence in this regard, according to the Luxembourg-based court.
The CJEU thus responded to a preliminary question referred by the General Court of the Capital (Hungary), before which an Iranian national filed a complaint in 2022 against her registration as a woman upon obtaining refugee status in 2014, despite having obtained it based on her trans status and having provided medical certificates issued by specialists in psychiatry and gynecology.
According to these certificates, although this individual was born female, her gender identity was male.
After her refugee status was recognized on this basis, this individual was nevertheless registered as a woman in the asylum register maintained by the Hungarian asylum authority. This registry contains the identification data of persons who have obtained such status in Hungary, including their gender.
The applicant requested rectification of his gender identity in the refugee registry under the EU General Data Protection Regulation (GDPR), but was denied because he had not proven that he had undergone sex reassignment surgery. There is no procedure for legal recognition of transgender status under Hungarian law.
On this point, the CJEU noted that, under the GDPR and, in particular, the principle of accuracy established by this Regulation, the data subject has the right to have inaccurate personal data concerning him or her rectified without undue delay.
The Regulation enshrines the fundamental right, also enshrined in the Charter of Fundamental Rights of the European Union, that everyone has the right to access and obtain rectification of data collected concerning him or her.
In this context, the Court of Justice clarifies that a Member State cannot invoke the absence, in its national law, of a procedure for legal recognition of transgender status to hinder the right to rectification.
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