| Applicant name | R.K. |
| Applicant type | Natural person |
| Number of applicants | 1 |
| Country | Hungary |
| Application no. | 54006/20 |
| Date | 22/06/2023 |
| Judges | Marko Bošnjak, President, Péter Paczolay, Krzysztof Wojtyczek, Alena Poláčková, Lətif Hüseynov, Gilberto Felici, Erik Wennerström |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | Positive obligation |
| Type of privacy | Private life; procedural privacy |
| Keywords | Gender reassignment; legal regocnigiton; in abstracto; quality of law; procedural requirements; |
| Facts of the case | The applicant requested to change his “sex/gender marker” and name on. The local government and domestic courts, however, denied that claim. |
| Analysis | This case is relevant for a small number of reasons: 1. The Court reiterates its case-law on legal gender recognition, from which it follows that what member States are expected to do under Article 8 ECHR is to provide quick, transparent and accessible procedures for changing the registered “sex/gender marker” of transgender people. The Court first notes that while there was no provision in the domestic law that explicitly provided for the alteration of a person’s gender identity, legal gender recognition took place as the change of a person’s name and “sex/gender marker” in the register of births in the course of administrative proceedings. Moreover, the Court finds that while the provision relied on by the Governmentwas in force at the time applicant sought gender recognition, the practice remained inconsistent and, with very few exceptions, had not yielded any results. These findings suggests that the ECtHR looks at the legal system as such, rather than the application of the legal regime to the applicants case, and that it focusses on procedural, rather than substantive requirements. 2. The ECtHR then turns to the requirements under its quality of law doctrine as it points to the lack of a clear legal framework also left the local registrars with excessive discretionary powers, leading to the inconsistent practice of either dismissing requests for gender recognition, citing failure to comply with the statutory preconditions, or occasionally allowing them. These inconsistencies in the interpretation of the domestic law by the domestic authorities were the result of the law itself not being sufficiently detailed and precise. ‘The Court finds that the circumstances of the present case reveal legislative gaps and serious deficiencies that left the applicant in a situation of distressing uncertainty vis-à-vis his private life and the recognition of his identity. As stated above, this situation, for which the national authorities bore sole responsibility, is having long-term negative consequences for the applicant’s mental health. The foregoing considerations are sufficient to enable the Court to conclude that the legal framework in force at the material time in the respondent State did not provide “quick, transparent and accessible procedures” for the examination of a request to change the registered sex of transgender people on birth certificates (§ 76).’ 3. In a concurring opinion, judge Huseynov notes that in its judgement, the ECtHR goes one step further than in its previous jurisprudence and uses different wording than in older judgments, which he is sceptical about. |
| Other Article violation? | – |
| Damage awarded | (i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,700 (two thousand seven hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (i) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; |
| Documents | Judgment |