March 27, 2026
Dr. Türkan Ertuna Lagrand[1]
On 12 March 2026, the Court of Justice of the EU (CJEU) rendered its long awaited judgment in the Shipova case (Case C‑43/24), which breaks new ground in the realm of European Citizenship Law, as well as significantly improves the rights of transgender persons in the EU. The case concerns the request of a Bulgarian transgender woman living in Italy to receive Bulgarian identity documents in line with her gender identity. As Bulgarian law excludes the possibility for any amendment of gender data on identity documents, the Bulgarian Supreme Court of Cassation had referred preliminary questions to the CJEU.
While the obligation of a Member State of origin to amend the identification documents to reflect the gender identity of a citizen of the European Union who has exercised their freedom of movement has been dealt with before in the seminal case Mirin (Case C-4/23), that case concerned the recognition of a gender identity certificate acquired in another Member State. The Shipova case decides that even in the lack of any documents obtained from the host Member State, which contain data relating to gender identity, legislation in the Member State of origin which prevents the change of gender data cannot be upheld in the case of a Union citizen who has exercised their right to free movement. In that sense the Shipova case significantly broadens the reach of Article 21 of the Treaty on the Functioning of the EU (TFEU). Yet, its significance is not limited to contributing to the evolution of European Citizenship Law, as the judgment also fundamentally strengthens the protection of transgender individuals within the EU, following in the path of other recent CJEU judgments such as Mousse (Case C-394/23), and Deldits (Case C-247/23). It does so by utilizing case-law of the European Court of Human Rights (ECtHR), meaning that the substantive protection largely mirrors the standards developed by the ECtHR under Article 8 ECHR. Since CJEU judgments are directly binding on national courts, who are under the obligation to disapply conflicting national legislation, the CJEU’s intervention strengthens the practical effectiveness of the protection developed by ECtHR by allowing individuals to invoke these rights directly before national courts within the framework of EU law. This contribution highlights how the CJEU incorporated the European Convention on Human Rights (ECHR) and the relevant judgments of the ECtHR in reaching its decision in Shipova.
K. M. H., born in Bulgaria, was registered in the civil status registers as male, with a corresponding name and personal identification number. While living in Italy, K. M. H. has been experiencing obstacles on a daily basis due to the discrepancy between her appearance and behaviour, and the sex indicated on her identity documents. Consequently, in 2017, she requested the Bulgarian authorities to change her gender and name in her birth certificate. Her request was rejected on the ground that Bulgarian legislation did not provide for the possibility of altering sex registered at birth, except when a bodily change renders it necessary. The issue reached the Supreme Court of Cassation, which was conflicted due to the national, international and EU obligations which it had to weigh. At the national level, the substantive law in force in Bulgaria did not provide for the possibility of changing the sex, name and personal identification number appearing in the civil status documents of a transgender person. Furthermore, the Bulgarian Constitutional Court had held that the term ‘sex’, within the meaning of the Bulgarian Constitution, must be understood as referring exclusively to its biological dimension, on account of the moral and/or religious rules and principles which must prevail over the interests of transgender persons (para 21 Shipova). However, the Supreme Court of Cassation also considered that, even though the rules on the status of persons fall within Member State competence, Bulgaria had obligations flowing from international law (especially Article 8 ECHR on the right to respect for private and family life) and EU law, namely, Article 9 TEU, Articles 8, 10 and 21 TFEU and Article 7 of the Charter of Fundamental Rights of the EU (the Charter). Hence, it stayed the proceedings and referred questions for preliminary ruling regarding the compatibility of the Bulgarian policy with EU law.
This section will address two aspects of the Shipova judgment, following the structure of the judgment. The CJEU first focused on the interpretation of Article 21 TFEU on citizenship of the Union and second on Article 7 of the Charter on respect for private and family life. Article 21 TFEU ensures that every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, albeit subject to limitations, as will be explained below. The human rights aspects of the judgment are discussed by the Court in its consideration of the justifications for possible limitations to the right to free movement. It is this second step of the argumentation that incorporates the ECHR as well as the case-law of the ECtHR. Accordingly, the Court’s interpretation will be explained below first, after which the human rights discussion will be analysed.
The right of Union citizens to move and reside freely within the territory of Member States is enshrined in Article 21 TFEU. In Shipova, the CJEU reiterated its position in Mirin that it would constitute a hindrance of that right, if a Member State refuses to recognize a change of gender identity made pursuant to the procedures laid down for that purpose in the Member State in which the Union citizen exercised that right. This is due to the serious inconvenience that would be caused for the national concerned, at administrative, professional and private levels (para 38 Shipova). The CJEU subsequently further explained that in the situation where a Union citizen has legally changed their gender and name in the Member State to which they have moved, the transgender person would face a real risk due to bearing two different names and identities, which would raise doubts about the authenticity of the identity documents or the veracity of their content (para 39 Shipova). Next, the Court pointed out that K. M. H. does not hold any such documents issued by the host Member State. The CJEU subsequently followed the argumentation of the Advocate General Richard de la Tour in his opinion dated 4 September 2025, and ruled that in K. M. H.’s case, the matter that would be hindering the exercise of the right flowing from Article 21 TFEU, is not the discrepancy between two identity documents, but that between the gender on the only identity card that she holds and her lived gender identity (para 41 Shipova) (find an analysis of the Advocate General’s opinion by Alina Tryfonidou here). It has been this discrepancy that caused her considerable inconvenience when she had to identify herself to airline or hotel staff, as well as to the law enforcement authorities, particularly when crossing a border (para 42 Shipova). It is this hindrance caused to the exercise of the right which flows from Article 21 TFEU that, according to the Court, brings the issue under EU law. The Court thereby broadens the reach of Article 21 TFEU and thus EU Citizenship law from Mirin-like situations, where the national legislation does not permit the registration of a first name and gender identity lawfully acquired in another Member State, to situations where a Member State does not permit the gender data of its own national who has exercised their right to move and reside freely in another Member State. Uladzislau Belavusau has cautioned against this broadening of the reach of EU Citizenship Law on a relatively ‘thin cross-border element’ as it could be seen as ‘subtly recalibrating the threshold for the cross-border element required to trigger EU citizenship protections’.
The human rights considerations are relevant as part of the analysis the CJEU conducts into whether the restriction on the right to freedom of movement may be justified. This section of the judgment follows the line of argumentation the Court had developed in Mirin. Accordingly, a justification of this kind could be present if the restriction is based on objective public-interest considerations, and if it is proportionate to the legitimate objective pursued by national law. When a measure of a Member State which restricts a fundamental freedom guaranteed by the Treaties is justified by an overriding public interest, such a measure must comply with the fundamental rights enshrined in the Charter. It is on this point that a link is established by the CJEU to the ECHR, as the rights guaranteed in Article 7 of the Charter on the respect for private and family life ‘have the same meaning and the same scope as those guaranteed in Article 8 ECHR, the latter article constituting a minimum threshold for protection’ (para 49 Shipova). Indeed, the ECtHR had laid the foundations in Goodwin v. UK and clearly stated in van Kück v. Germany, that one’s gender identity falls under the protection of Article 8 ECHR in connection to the notion of personal autonomy (see also Guide on Article 8 of the ECHR, and Case-law Guide on the Rights of LGBTI Persons). The CJEU takes over the wording that is to a great extent preserved by the ECtHR since van Kück and highlights that this article ‘encompasses the right of each person to establish details of their identity as individual human beings, which includes the right of transgender people to personal development and physical and moral integrity and to respect for and recognition of their gender identity’ (para 50 Shipova).
Following its line of argumentation in Mirin, the CJEU then moves to the next step of the settled argumentation of the ECtHR case-law, which is the clarification that Article 8 ECHR imposes not only negative, but also positive obligations on States. Regarding legal gender recognition, and in the specific case of Bulgaria, this was clarified earlier by the ECtHR in the case P. H. v. Bulgaria, as referred to by Advocate General in its opinion (paras 90-95 of the opinion). The CJEU reiterates its position that these positive obligations entail the establishment of effective and accessible procedures guaranteeing effective respect for the right to gender identity, as the recognition of a person’s gender identity cannot be made conditional on surgical treatment that is not desired by that person. In the same manner as in Mirin, the CJEU in Shipova underlines that the ECtHR case-law requires Member States to provide for a clear and foreseeable procedure for legal recognition of gender. It had indeed been decided in X and Y v. Romania that the lack of a clear and foreseeable procedure for legal recognition of gender identity making it possible to amend a person’s indicated gender constituted a violation of Article 8 ECHR. Yet unlike in Mirin, the CJEU invokes X and Y v. Romania not directly but via Mirin (para 51 Shipova). To conclude, on the issue of Article 8 ECHR, the CJEU, this time directly, refers to the Y.T. v. Bulgaria judgments of 2020 and 2024, as well as to P.H. v. Bulgaria declaring the relevant Bulgarian legislation as incompatible with the Convention (para 52 Shipova).
The CJEU, then turns its focus back to EU Law, and pays tribute to its own seminal judgment in the historical Case P. v. S. (Case C-13/94) by stating that ‘to tolerate discrimination based on the difference between biological sex and gender identity would be tantamount, as regards a transgender person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard’ (para 54 Shipova). Subsequently, without presenting any further argumentation relating to the Charter, the CJEU concludes that national legislation which does not permit a change of the gender data of a national who has exercised their right to free movement is contrary to the fundamental rights guaranteed to transgender persons by Article 7 of the Charter.
While the earlier CJEU cases on transgender rights, starting with the seminal P. v. S., were centred around EU anti-discrimination law, in its recent case law, the CJEU has been unlocking new legal avenues for strengthening the protection of transgender persons’ rights. In the cases Mousse and Deldits, for example, the issues brought before the Court were GDPR-related. In Mousse, the CJEU considered whether requiring passengers to select “Monsieur” or “Madame” when buying train tickets violated the principle of data minimisation under the GDPR. In Deldits, the CJEU considered whether the GDPR was to be interpreted as requiring national registry authorities to rectify a data subject’s recorded gender when it no longer reflects accurate personal data. As the Court is being approached with questions relating to the rights of transgender persons in a growing number of legal avenues, the CJEU is also going beyond the traditional boundaries of EU anti-discrimination law and is systematically establishing links with the ECtHR case-law. In the Deldits judgment for example, in which the CJEU decided that the right to rectification under Article 16 GDPR requires authorities to rectify personal data concerning gender identity which is held in public registers when such data is inaccurate (para 38 of Deldits judgment), the Court has built its case by referring to a wide range of ECtHR judgments.
The Mirin and Shipova judgments are further examples of this trend, as the CJEU has explored (and extended) the boundaries of European Citizenship Law, as well as the interlinked free movement rights, which brought the Court’s assessment within the scope of the Charter, and thereby allowed the Court to draw heavily from ECtHR case-law. This strong basis provided by ECtHR case-law, first allowed the CJEU, in Mirin to establish the obligation to recognize a gender identity certificate acquired in another Member State, and then in Shipova to extend that obligation to amending gender data in citizens’ own identity documents if they have exercised their right to free movement.
It is significant that in deciding the groundbreaking CJEU cases on transgender rights, referred to as the ‘Trans Rights Revolution’, the Court has been depending so intensively on ECtHR case-law. This contributes to a widening and strengthening the influence of the protection developed by ECtHR for transgender persons by allowing individuals to invoke these rights directly before national courts within the framework of EU law.
While the argumentation, which the CJEU used to broaden the reach of European Citizenship Law in the present judgment, will continue to be debated intensively, the strengthening of transgender rights is a very welcome and needed development. There are various issues that will possibly increasingly come before the two European courts, such as the recognition of different gender markers for non-binary and intersex persons, and a strong European wide protection standard for such issues will depend on the continued dialogue between Strasbourg and Luxembourg.
[1] With thanks to Matti Warnez for his feedback.
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