European Digital Identity Wallets coming packed with gender ideology, with seven “genders” to choose from

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· The European Commission has submitted for public consultation four draft implementation regulations on EU Digital Identity Wallets.

· The drafts provide technical specifications for the applications, which are intended to be the European equivalent of the Polish “mObywatel.”

· One of the drafts stipulates that the “gender” of a user can be defined in seven different ways.

· The Ordo Iuris Institute is calling for amendments to the draft regulation to ensure that the solutions specified in it do not interfere with the exclusive competence of member states to establish their own regulations on civil-status records and gender identification.

The Ordo Iuris Institute took part in the public consultation on the European Commission’s implementation regulations, which clarify the technical specifications of EU Digital Identity Wallets (EUDI). These are applications that, at the EU level, will provide services similar to those available in the Polish “mObywatel.” These applications will not be EU-issued, and their creation is the responsibility of member states, which will be able to create such an application themselves or implement a third-party application. As Ordo Iuris pointed out in its earlier opinion on the subject, use of the app is to be entirely voluntary; it will not be possible to make public-service access dependent on whether someone wants to verify identity through the application or by another means.

“A poorly designed EUDI system could become a real threat to the privacy of EU citizens, as the facilities introduced today could be used against citizens in the future,” notes Dr. Łukasz Bernaciński, a board member of the Ordo Iuris Institute. “EUDI could ultimately provide a platform for storing full medical and banking records or be used to confirm financial transactions. In that case, it would become a classically conceived wallet adapted for trading at least digital currency, and would be yet another voluntary convenience displacing cash. However, the system could also potentially record the carbon footprint of citizens, enabling the introduction of restrictions linked to excessive burdening of the planet, for example.”

The European Commission, fulfilling its obligation on the matter under Articles 5a(23) and 5c(6) of the Regulation of the European Parliament and the Council of the European Union, has published drafts of four implementation regulations: the first on the basic function of the wallets; the second on the certification of these wallets by member states; the third on member states’ notification to the Commission of the accepted wallets; and, finally, the fourth on the identification data of a given user.

All of these drafts primarily clarify details and technological solutions related to European Digital Identity Wallets, without going beyond the regulation framework described above. This results from their very nature as implementation regulations. However, the last of these – concerning user data – includes details that raise questions about infringement on the power of member states to shape their own regulations on civil-status records and sex (or “gender”) identification.

In the table of the first appendix to the draft regulation, among the mandatory attributes that must be included as part of the data identifying a person, there is noted an attribute relating to the sex of the person (“sex”), with potential values defined as: “unknown,” “male,” “female,” “other,” “inter,” “diverse,” “open,” and “not applicable.” However, the national law of the vast majority of member states, including Poland, where the dichotomous division of society into two sexes is among the basic principles of the national legal order, does not provide for the possibility of defining sex (even if calling it “gender”) as other than “male” or “female.” Countries allowing such differentiated gender designation are still a decided minority of European Union countries. Even where such a practice has been allowed, in the vast majority of cases, it applies only to those suffering from hermaphroditism and is used in extreme, isolated, and rare instances. Nowhere, by contrast, has such a variety of possible identifications been permitted, as is proposed in the draft of the aforementioned implementing regulation. Significantly, according to the case law of the European Court of Human Rights, including in particular the judgment in Y. v. France, of January 31, 2023, there is no obligation from the European Convention on Human Rights for a state to recognize genders other than male and female.

Moreover, according to Article 3(3) of Regulation (EU) No. 910/2014 of the European Parliament and Council of the European Union, “data identifying a person” means a collection of data that is issued in accordance with EU or national law. In this regard, the Ordo Iuris Institute has asserted that the regulation should be amended to allow member states to create such a set of person-identifying data linked to a given portfolio that is consistent with the data disclosed in civil registers. On the other hand, it should be clear from the regulations that specifying gender as other than male or female is not acceptable if it would conflict with the national law of the country issuing the European Digital Identity Wallet.

“It should be noted that the gender terms ‘other,’ ‘inter,’ ‘diverse,’ and ‘open’ are not defined anywhere, and it is unclear how they differ,” noted Jędrzej Jabłoński, an analyst at the Ordo Iuris Research and Analysis Center. “Specifically, they are not accounted, as cited in the appendix, by the ISO/IEC 5218 standard establishing an international guideline for coding gender with numerical expressions in electronic databases. This standard provides only four values: ‘unknown,’ ‘male,’ ‘female,’ and ‘not applicable.’ Therefore, the Ordo Iuris Institute maintains that the remaining values, not reflected in this standard, should be completely deleted from the draft.”

The Ordo Iuris Institute’s opinion is available on the European Commission’s consultation website.