Strasbourg Court judgment contrary to biological facts. Bulgarian authorities must recognise a woman as a man

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The European Court of Human Rights (ECHR) sided with a Bulgarian woman who, contrary to Bulgarian law, demanded that she be recognised as a man. The courts refused to register her as a man in the civil status records, as her legal gender must correspond to her biological gender. As a court of second instance emphasised, changing a person’s appearance does not change their actual gender. However, ECHR considered the decision of the Bulgarian authorities an infringement of the woman’s right to privacy.

In 2015, a female Bulgarian citizen applied to a court to change her name, registered gender and identification number in the civil status records. She supported the request with medical records which showed that she had previously undergone breast removal surgery, which was to make her look like a man. The court rejected the request, indicating that according to the Bulgarian law there are two genders, and the gender recorded in the civil status records must correspond to the biological gender of the person concerned. Bulgarian law did not provide for the possibility of “sex reassignment”. A similar decision was taken by a court of second instance, which added that a surgery can change a person’s appearance, but cannot change their actual gender.

In 2016 the woman filed a complaint to the European Court of Human Rights in Strasbourg, alleging that her right to privacy was violated. ECHR agreed with her, stating that Bulgaria breached Article 8 of the European Convention on Human Rights. The Court concluded that a part of the right to privacy is “the right to acknowledge the legal effects of sex reassignment”, which was supposedly violated in this case. ECHR remarked that although the Bulgarian law did not provide for the procedure of sex reassignment, the case law allow such a possibility, and the courts in this case did not take account of that case law.

“It is yet another judgment of the Court attempting to establish a right to self-define one’s gender despite basic biological facts and the applicable international law. For several years now the Court, in its judgments on the so-called transsexuals, has been reiterating that everyone has the right to choose their own gender, and the state has a duty to recognise this – regardless of whether or not such a person wants to look like the opposite sex. In practice, therefore, the Court requires Member States to treat transsexual women as men, and men with this disorder as women, even if they have not undergone any surgery or hormone therapy. The Court’s case law undermines the fundamental principle of the law of civil status records, which states that personal data – one’s name, registered gender, ID number – should reflect the biological reality. If one’s gender is decided on the basis of one’s subjective feeling, in the nearest future this may lead to the undermining of the identity of marriage as a relationship between a woman and a man,” said Filip Furman, PhD, Director of the Centre for Social Sciences and Bioethics of the Ordo Iuris Institute.

The case of Y. T. v. Bulgaria, ECHR judgment of 9 July 2020