Violation of the right to private life of a trans* man - refusal to modify the civil status registers

EUROPE: TRANS* PERSONS' RIGHTS

(violation of Art. 8 of the Convention)

European Court of Human Rights, judgement of 16 July 2020, Rana c. Hungary (Application no. 40888/17)

Born a female in Iran, the applicant, a transgender man who had obtained asylum in Hungary, complained about the Hungarian authorities’ refusal to change his name and sex marker from «female» to «male» in his identity documents because he did not have a Hungarian birth certificate.
 
The Constitutional Court rejected the applicant’s constitutional complaint because of the existing legal framework since no statutory basis for changing the names of non-Hungarian citizens existed. The Constitutional Court noted, however, that this is nevertheless a fundamental right and that it is necessary to amend the legislation. In its view, the legislator was under the obligation to find a different solution for petitioners without Hungarian birth certificates. The Constitutional Court called upon Parliament to meet its legislative duty by 31 December 2018 and invited the applicant to resubmit his request (§ 13).
 
The ECtHR refers to the relevant Convention principles regarding positive obligations under Article 8, which have been summarised in ECHR (GC), judgement of 16 July 2014, Hämäläinen c. Finland (Application no. 37359/09) §§ 65?67. It considers that the main question to be addressed in the present case is whether, in view of the margin of appreciation available to them, the Hungarian authorities struck a fair balance between the competing interests of the applicant in having his gender identity legally recognised and the community as a whole (§ 38).
 
The Court observes that the domestic authorities rejected the applicant’s application purely on formal considerations, without examining his situation and therefore without conducting any balancing exercise of the competing interests. In particular, the relevant authorities did not take into account the fact that the applicant had been recognised as a refugee precisely because he had been persecuted on the grounds of his transgenderism in his country of origin. Therefore, the applicant could not reasonably have been expected to pursue the recognition of gender reassignment and the name?change procedure in his country of birth (§ 40).
 
Besides, an additional administrative burden cannot in itself justify an unconditional refusal (§ 41).
 
The Court concluded that there has therefore been a violation of Article 8 of the Convention.

Direct link to the judment (hudoc.echr.coe.int)