Transgender peoples' legal hurdles with EU freedom of movement

For transgender individuals, the dream of seamless travel and residence across EU member states is often undermined by a patchwork of legal and bureaucratic barriers surrounding recognition standards of gender identities that vary widely across EU states.

These inconsistent regulations of gender recognition create significant obstacles for transgender individuals.

While some member states have progressive laws allowing for self-determination of gender markers in passports or else, without medical or psychological intervention, others impose difficult or inhumane requirements such as mandatory sterilisation or prolonged psychological evaluations.

This lack of uniform legal standards on the recognition of transitioning and gender identities means that a transgender* person legally recognised in one country may face difficulties or outright refusal when seeking recognition in another. The result is a fractured landscape where the fundamental right of transgender EU citizens to move and reside freely is diminished by bureaucratic and legal barriers.

The European Court of Justice (ECJ) has made some central judgments in addressing these issues.

Landmark cases such as P v S and Cornwall County Council established that discrimination based on gender reassignment constitutes sex discrimination under EU law. This ruling was significant, as it provided a degree of protection for transgender individuals in the workplace, which is yet to be formally adopted into EU legislation.

However, the scope of judicial decisions is often limited to specific contexts and does not comprehensively address the broader issue of legal gender recognition across member states.

The ongoing Mirin case (C-4/23) is particularly relevant to the issue of the fragmented EU landscape surrounding legal recognition, as it addresses the difficult balance between EU and member state competences on issues of fundamental rights connected to civil status.

When transgender EU citizens cannot move between member states and retain the same treatment and respect of their identity, as in Mirin, the Union fails its mission of union in diversity. Fractured legal landscapes lead to fractured legal identities. Civil identification is the cornerstone of having rights and akin to Hannah Arendt’s writings on human rights, EU citizens have the right to have rights, as guaranteed in the “constitution” of our Union. 

The lack of uniformity in legal recognition not only undermines the principle of freedom of movement but on a more practical level also impacts the daily life of transgender individuals.

Invasive questioning

For example, inconsistencies in legal documents can lead to invasive questioning, harassment, and even denial of services when traveling, relocating, even family-planning. A transgender person whose passport reflects their gender identity in one country may find themselves mis-identified in another where their transition or legal gender is not recognised. This can complicate everything from accessing healthcare to securing employment, essentially barring the freedom of movement that is supposed to be a guaranteed right. In cases like Mirin, we see once more that rights in theory do not guarantee de facto enforcement and protection. 

These legal disparities contribute to a sense of insecurity and marginalisation among transgender EU citizens. Knowing that their rights can change dramatically simply by crossing a border undermines their sense of belonging and equality within the EU. This is particularly troubling given the EU’s commitment to human rights and equality. The situation calls into question the effectiveness of EU laws and policies meant to protect all citizens equally.

The European Parliament has called for more consistent and inclusive approaches to gender recognition, but practical implementations are lacking.

Recommendations include harmonising legal standards across member states to ensure that gender recognition procedures are quick, transparent, and based on self-determination. Additionally, recognizing non-binary identities is a major step towards equality across gender identities and outside of the existing gender binary. These measures would help bridge the gap between the EU's ideals and the lived realities of its transgender citizens.

Despite these challenges, there have been positive developments and growing momentum for change, hugely created by civil society organisations, such as Transgender Europe (TGEU) and ILGA-Europe. They continue to advocate for the rights of transgender individuals, pushing for legislative reforms and raising awareness about the issues they face. Their work is vital in keeping the pressure on policymakers to address the existing gaps and ensure that transgender* rights are fully integrated into the broader framework of EU human rights protections.

The freedom of movement is a fundamental right that should be accessible to all EU citizens, regardless of their gender identity. Ensuring that transgender individuals can exercise this right without facing discrimination or legal hurdles is essential for the EU's commitment to equality and human rights.

As the EU continues to strive for unity in diversity, it must take concrete steps to harmonize legal gender recognition across member states, ensuring that all citizens can live and move freely with dignity and respect. The path to achieving this may be complex and challenging, but it is a necessary journey to fulfill the promise of a truly inclusive European Union.