Introduction
On 13 March 2025, the First Chamber of the EU Court of Justice (CJEU) delivered its judgement in Deldits (C-247/23). The dispute concerned the refusal of Hungarian authorities to update the gender marker (from F-emale to M-ale) of a transgender refugee based on the finding that the applicant had not undergone gender reassignment surgery. Interestingly, the case was not built on any fundamental rights claim but only on compliance with the principle of accuracy established in Article 5(1)(d) of the General Data Protection Regulation (GDPR).
The Court ruled out this practice, thus affirming that surgical treatment is not a relevant condition to benefit from a right stemming from EU law. This decision is momentous for several reasons. In a moment when trans* rights are under systemic attacks globally, the CJEU is expanding the protection of those rights under EU law. This happens not only via the traditional non-discrimination law but also through other legal instruments, such as the GDPR. More importantly, this case marks a turning point for the CJEU’s departure from its medicalised understanding of transgender identity. Notably, this piece will focus on the latter development.
A. Factual Background and Preliminary Questions
The dispute concerned VP, an Iranian national who obtained refugee status in Hungary, where they resided since 2014. In support of their application to obtain refugee status, VP relied on their transgender identity and thus produced medical certificates issued by specialists in psychiatry and gynaecology. All these documents indicate that while VP was assigned female at birth, their gender identity was male. Nevertheless, VP was registered as a female in the asylum register managed by the Hungarian asylum authority. In 2022, VP submitted a request to that authority to rectify their gender marker (from F-emale to M-ale). However, the Hungarian authorities rejected that request based on the finding that VP did not undergo gender reassignment surgery.
Therefore, VP lodged an action for annulment of that decision before the Budapest High Court, which referred three preliminary questions to the CJEU:
– whether the right to rectification in Article 16 GDPR, read in light of the principle of accuracy established in Article 5(1)(d), required national authorities to rectify the data regarding the gender identity of an individual;
– whether there is a requirement to provide medical proof of the gender transition and, in particular, proof of surgical treatment to rectify the data contained in the asylum register.
B. Judgment of the Court
In the questions referred to the CJEU, rectifying one’s gender marker is framed as a technical issue of data accuracy. No fundamental rights provision is mentioned – not even in a complementary manner. Nonetheless, following the Opinion of the Advocate General squarely, the Court highlighted the broader fundamental rights dimension of data protection. In particular, the Court stressed that the right to obtain rectification of incorrect personal data under Article 16 GDPR gives specific expression to the fundamental right contained in Article 8(2) CFREU (para. 24). Accordingly, the Court emphasised that the objective pursued by the GDPR is to ensure ‘a high level of protection of the fundamental rights and freedoms of natural persons’, notably the right to privacy with respect to the processing of personal data expressed in Article 8(1) of the Charter and Article 16(1) TFEU (para. 27). However, the Court did not mention the right to respect for private life contained in Article 7 CFREU, which encompasses the right of trans* persons to respect for and recognition of their gender identity (see Mirin, para. 64). While this provision came back in the analysis of the third question, the Court failed to highlight (at least, in this part) the more personal and intimate aspects of the right to data rectification.
On the first question
The Court then started its assessment of the first question by stating that the right to rectification contained in Article 16 GDPR must be read in light of the principle of accuracy established in Article 5(1)(d) (para. 25). In this context, the Court pointed out that the assessment of whether personal data is accurate and complete must be done considering the purpose for which those data were collected (para. 26). If the purpose is the identification of the person concerned, as it was in the case at hand, the data collected should refer to their lived gender identity, and not to the sex assigned at birth (para. 32).
Furthermore, while the right to rectification can, in principle, be restricted, this can be done only by means of a legislative measure and for reasons of general public interest under Article 23 GDPR. In the present case, the restriction did not stem from any legislative measure, but from the sole finding that VP had not provided proof of their gender identity (para. 36). Nevertheless, the Court highlighted that the right to rectification cannot be restricted by the sole fact that a Member State does not provide for legal gender recognition (LGR) procedures within its domestic legal system. Against this backdrop, the Court recalled its previous case law on trans* rights. While the Member States retain competence to regulate LGR procedures, they cannot entirely refuse to recognise an individual’s gender transition if this prevents them from fulfilling a condition that must be met to enjoy a right protected by EU law (para. 37). In this case, the non-recognition of VP’s gender identity prevented them from being entitled to the right to data rectification under Article 16 of the GDPR.
On the second and third questions
On the second and third questions, the Court repeated that the right to rectification could be restricted by, for instance, requiring proof of an undertaken gender transition. Yet, such a restriction must be adopted through legislative measures. In addition, it must respect the essence of the fundamental rights and freedoms and be necessary and proportionate (paras. 41-42).
However, the refusal of Hungarian authorities was based on the sole finding that the applicant did not undergo gender reassignment surgery. This amounts to an administrative practice developed by Hungarian authorities, which does not fulfil the requirement of a legislative measure (para. 44).
Moreover, the Court found that such practice is liable to undermine the right to the integrity of the person and the right to respect for private life, protected by Article 3 and Article 7 CFREU respectively (para. 45). This is also evident from the case law of the European Court of Human Rights (paras. 46-48), which had already ruled that the legal recognition of the gender identity of a transgender individual ‘cannot be made conditional on the completion of surgical treatment’ (see ECtHR, case X and Y v Romania). Finally, such administrative practice is not necessary or proportionate, as a medical certificate constitutes sufficient evidence (para. 49).
C. The CJEU and Trans* Rights: Finally Beyond Medicalisation?
The case law of the CJEU has played a crucial role in the advancement of the rights of transgender individuals under EU law (see Dunne). Since its landmark ruling in P v S (C-13/94), the Court recognised discrimination based on gender reassignment as a form of sex discrimination. Moreover, subsequent judgements in cases KB (C-117/01) and Richards (C-423/04) further reinforced the principle established in P v S, confirming that the full spectrum of EU gender equality legislation applies to discrimination based on gender reassignment.
However, this case law entails a significant limitation: the medicalised understanding of transgender identity. In particular, ‘gender reassignment’ includes only those transgender individuals who have undergone surgical treatment. This approach replicates a binary understanding of gender and excludes from the scope of EU non-discrimination law a significant percentage of the trans* population, including non-binary individuals.
The gradual shift of Mirin, Mousse and Deldits
While the ‘medicalised approach’ of this case law has been highly criticised in the literature (see Bell), the CJEU has recently ruled in a set of cases that further enhanced the protection of trans* persons under EU law. First, in Mirin (C-4/23), the CJEU established a mutual recognition obligation for gender transition. The Member States must recognise the gender transition legally completed in another Member State – and thus rectify identity documents and civil status entries with the acquired gender marker of the person concerned. Second, in Mousse (C-394/23), the CJEU held that the mandatory choice between ‘Madame’ and ‘Monsieur’ when purchasing an online train ticket is incompatible with the principle of data minimisation under Article 5(1)(c) GDPR. Thus, the CJEU held that the practice of collecting data related to a person’s gender is not necessary and may lead to discrimination based on gender identity. As noted by Bruno, this case further confirms the capability of the GDPR to expand the legal protection of trans* rights under EU law.
Significantly, a combined reading of these three cases (Mirin, Mousse and Deldits) suggests that the CJEU is abandoning its ‘medicalised approach’. On the one hand, the Court changed its terminology. In previous case law (P v S, KB, Richards and MB), the CJEU exclusively referred to ‘gender reassignment (surgery)’. By contrast, in the recent trilogy of cases, the Court only referred to the ‘(gender) identity’ of the applicants. This vocabulary mirrors a more inclusive and nuanced understanding of the trans* population, which is liable to encompass non-binary individuals and trans* persons who have not undertaken surgery. On the other hand, in both Mirin and Mousse, the Court ignored whether the applicants had undergone reassignment surgery. Thus, one could imply that surgery was no longer a relevant condition to benefit from a right stemming from Union law.
In Deldits, which constitutes the last brick of this trilogy, the CJEU makes the shift in its case law evident. The ruling directly addressed the question of whether gender reassignment surgery is a relevant condition for the enjoyment of a right derived from EU law. The Court unequivocally held that it is not: a medical certificate confirming the gender transition of an individual constitutes sufficient evidence.
Furthermore, this conclusion was grounded in a robust fundamental rights narrative. The Court consistently referred to the Charter, especially its Article 3 (right to the integrity of the person) and Article 7 (right to respect for private life). Interestingly, the Court did so despite the complete absence of these Charter provisions in the preliminary questions of the referring Court. Moreover, the CJEU expressly relied on Article 8 ECHR and the related case law of the ECtHR, which consistently held that the recognition of the gender transition of a transgender individual ‘cannot be made conditional on the completion of surgical treatment not desired by that person’ (ECtHR, Case X and Y v Romania).
Conclusions
The recent judgments in Mirin, Mousse, and Deldits reflect a twofold expansion of trans* rights under EU law. From one perspective, this expansion concerns the legal tools. Traditionally, the rights of transgender individuals have been addressed primarily through EU non-discrimination law. The recent case law demonstrates that EU law is also capable of conferring rights to trans* persons horizontally through legal instruments that are not explicitly designed to tackle issues of gender identity. In Mirin, for instance, the mutual recognition obligation was established via EU citizenship and free movement rights. Likewise, the rulings in Mirin and Deldits relied on two principles established in the GDPR.
Deldits, from another perspective, seems to confirm the evolution of the CJEU’s case law towards a comprehensive understanding of transgender identity beyond medicalisation. In Mirin and Mousse, this development remained only implicit or potential, as the Court did not directly address surgical treatment. Significantly, Deldits marks a turning point: the irrelevance of gender reassignment surgery is not only discussed explicitly but also firmly grounded in robust fundamental rights reasoning. This development will clearly impact the Court’s case law on EU non-discrimination law, which has been limited to gender reassignment. Otherwise, how can the Court explain that surgical treatment is essential for accessing EU non-discrimination law protections, yet it is not deemed necessary for the rights granted under GDPR?
Alessandro Marcia (He/Him) is a Ph.D. Researcher and Lecturer of EU law at Maastricht University. His research focuses on LGBTIQA+ rights’ protection under EU law. Alessandro holds a Master’s Degree in Law from the University of Bologna and an LL.M. in EU law from Université libre de Bruxelles.
