EU Court of Justice rules trans people's gender must be corrected in Hungary's national registers

The Court of Justice of the European Union (CJEU) in Luxembourg ruled on Thursday that the gender of trans people must be corrected in Hungarian registers, the NGO Háttér Társaság has announced.

According to the ruling, the GDPR obliges Hungarian authorities to rectify inaccurate personal data on gender identity – meaning that the correction should be made in all cases where the social reality and the gender identity of a trans person differs from their gender recorded at birth.

The background to the CJEU's decision is the case of a trans man who was recognised as a refugee in 2014 and has been living in Hungary since then, who requested that the National Directorate General for Aliens Policing (NDGAP) change his gender and name under the terms of the GDPR law in 2021. His application was rejected and he then went to court with the help of Háttér Társaság and the Hungarian Helsinki Committee.

In the spring of 2023, the Metropolitan Court of Budapest initiated a preliminary ruling procedure in the case and sought the opinion of the European Court of Justice on the following questions:

• Does it follow from Article 16 of the GDPR law that – upon request – the public authority is obliged to correct personal data, such as the gender of the data subject, which has changed after it had been recorded in the register;
• If so, what evidence must be provided to support such a request;
• and is it necessary to prove that the data subject has undergone gender reassignment treatments.

The CJEU's Thursday ruling concluded that the current Hungarian legislation is incompatible with EU law. In accordance with this, the authorities may not invoke the fact that since May 2020, under Hungarian law, trans people have not been able to obtain legal recognition of their gender, i.e. the possibility to change their gender and name. According to the Luxembourg court, the authorities "may not, under any circumstances, make the exercise of the right to rectification conditional upon the production of evidence of gender reassignment surgery".

It was revealed just a few days ago that the Hungarian government is once again, for the fifteenth time going to amend what was previously described as a rock solid Fundamental Law. Among other things, the amendment would not only enshrine the priority of the rights of children, but would also declare that "a human being is either male or female" and that the gender a person was born with cannot be legally changed. The explanatory memorandum states that ‘it is the duty of the State to ensure the legal protection of this natural order and to prevent any attempts to suggest that changing the birth gender is possible.’