18 Aug Violation of the Convention due to the impossibility of changing the gender and name due to purely formal reasons

In the case of Rana v. Hungary (application no. 40888/17) the European Court of Human Rights held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. 

The applicant was born a female in Iran but has from an early age identified as a male. In 2015 he applied for asylum in Hungary and in December of that year the asylum authority granted his application, finding that he had suffered persecution in Iran owing to his gender identity (trans sexuality). However, he could not legally change his gender and name in that country. 

The Court did not question the Hungarian authorities’ choice to regulate the legal recognition of a gender change as a special kind of name-changing procedure performed by a registrar keeping the register of births. However, in balancing the competing interests at stake, States had limited discretion (“margin of appreciation”) when it came to an essential aspect of individuals’ intimate identity, such as gender identity in the applicant’s case.

It took note of the Constitutional Court’s finding of a legislative gap, which excluded all lawfully resident non-Hungarians from accessing the name-change and gender recognition procedure regardless of their circumstances, as a disproportionate restriction of their right to human dignity.

The authorities had rejected the applicant’s application on purely formal grounds, without examining his situation, thus not weighing up the competing interests at stake. In particular, they had not taken account of the fact that he had been given asylum precisely because he was persecuted in his country of origin on the grounds of his transgenderism. The Court considered that he could not reasonably have been expected to seek recognition of his gender change in Iran.

The Court observed that providing access to a procedure for legal gender recognition to people without Hungarian birth certificates, along with an examination of their claims on the merits, could be an additional administrative burden on the authorities. However, that could not by itself justify an unconditional refusal of the applicant’s request. In addition, the positive obligation set out by the Constitutional Court was relatively narrow and the possible impact on the State did not appear to be severe.

The Court concluded that a fair balance had not been struck between the public interest and the applicant’s right to respect for his private life owing to the refusal to give him access to the legal gender recognition procedure. 

References from the official website of the European Court of Human Rights