There is more than meets the eye to the Mirin case. Advocacy groups and commentators found it to be a victory for trans rights in Europe, rightfully so. But the fact that it features the highly salient question Legal Gender Recognition (LGR) of trans persons may somehow be the least note-worthy aspect of it. The judgment deserves a second read, for what is said, what is unsaid, and what is… hypothetically said.
The Mirin ruling lets us analyse why the CJEU sometimes engages in such a judicial aparte. From the respective roles of fundamental rights and EU citizens’ fundamental freedoms to worries about over-extended competencies, and its own place vis-à-vis the European Court of Human Rights (ECtHR), the Court cleverly addresses it all, if one looks closely enough.
Mirin by its facts
The Mirin case features a British-Romanian citizen who, after obtaining Legal Gender Recognition as male by the British authorities, asked Romania to also update his Romanian birth certificate. The Romanian administration refused, as Romanian Law only provides for a judicial but not an administrative LGR procedure. The applicant brought an action against the Romanian administration to challenge this refusal.
The applicant framed the case as a matter of direct application of EU Law. The standard LGR procedure in Romania lacks clarity and foreseeability. The applicant would run the risk of ending up with two sets of travel documents: a British one (registered as male) and a Romanian one (registered as female). Having accurate, coherent travel documents is essential to exercising his right to free movement as an EU citizen, and this outcome would therefore infringe on his EU rights. This did not matter to the administration: the only way to obtain the change sought to the birth registration documents was to go through the established judicial LGR procedure under Romanian law. The fact that another (former) Member state had already granted it in their records was irrelevant.
The Romanian court in charge of the case therefore asked the CJEU whether forcing the applicant to go through the judicial LGR procedure in order to have his gender transition recognised in the civil status would be an obstacle to the EU citizen’s right of free movement “in condition of non-discrimination and dignity”, and “respective to the right to private and family life”. The Court of Justice reformulates the EU provisions at stake as being “article 20 and 21, read the light of Articles 7 and 45 of the Charter” (para 47). Another question about the impact of Brexit was raised, but will not be addressed in this blog post.
Mirin by its text: the judgment of the Court (paras 47 – 61)
The Court (in Grand Chamber, nothing less!) starts with a reminder that the EU citizenship of the applicant is his “fundamental status”, and that freedom of movement is attached to this status (paras 50-52). The judges acknowledge that rules regarding a person’s civil status fall under the competence of Member States, but that Member States must still comply with the EU-derived freedom of movement thus guaranteed to all EU citizens (para 53).
From there, the Court builds on its established case law regarding the obligation to recognize the civil status established by another Member State (para 54-56). It also refers to the risk to effective free movement that a divergence in civil status resulting in a person having two different names can have. It finds that the procedure which refuses to recognize and register the LGR obtained in another state and requires the applicant to start a brand new judicial proceeding “is liable to restrict the exercise of the right to move and reside freely within the territory of the Member States” (para 57).
The judges in Luxembourg confirm that there can be restrictions to this right by national legislation of course, but that this is subject to this legislation being proportionate to legitimate objectives pursued (59). Neither the Romanian court nor the Romanian government provided information to that end, the Court of Justice, therefore, finds no reason why the applicant should see his EU citizen rights infringed upon.
End of the story? The Court is not quite done. It seamlessly continues, starting its paragraph 62: “Moreover, even if…”.
Mirin by its context: making sense of a judicial thought experiment
From paragraph 62 to paragraph 67, the Court of Justice engages in a thought experiment: what if there had been a legitimate objective behind Romania’s refusal to recognize and transcribe the British LGR?
It is not the case, here. Not even an attempt at such justification was made.
But what if?
The judges in Luxembourg reminded the Romanian court (who did not ask that question) that there would then be a second condition. The justification would need to be “consistent with the fundamental rights guaranteed by the Charter” (para 62). The next few paragraphs are devoted to a discussion of Article 7 of the Charter of Fundamental Rights (CFR), its connection with Article 8 of the European Convention on Human Rights (ECHR), the case law of the Strasbourg Court on LGR, positive and negative obligations it puts on Member States … before swiftly restating the answer initially reached at paragraph 61.
With this thought experiment (which ends up taking almost half of its reasoning!), the Court actually accomplishes three things, which add much more depth and nuance to the ruling, placing it in the broader legal and institutional context of European Human Rights. The Court stresses its focus on EU citizens’ rights rather than fundamental rights; it leaves silent the sensitive question of same-sex marriage and parentage; and it signals a willingness to work toward the coherence of European human rights with the ECtHR. Was this necessary to answer the question of the Court of First Instance of Bucharest? Maybe not, but the CJEU has always been a savvy actor.
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The prioritisation of citizen’s fundamental freedoms over fundamental rights
Anything discussed by the Court before paragraph 62 has to do with the freedom of movement. Anything discussed after is hypothetical. The case is about what comes before (EU citizen’s right to free movement) not what is after (the human right to LGR). The only right that Romania is at risk of violating, by refusing to update the gender of the applicant and change his personal number, is that of Articles 20 and 21 TFEU on the freedom of movement and residence across Member States (and its corollary, Article 45 CFR). What the CJEU is protecting are not trans rights, but EU citizens’ rights, and some EU citizens happen to be trans.
This does not have to be problematic – it is essential that trans EU citizens have just as effective access to their EU rights to move across borders as any other EU citizen. Yet, with the case framed this way, Luxembourg restricts the protection guaranteed through this judgement to a narrow minority: trans persons, who have exercised their right to move across borders, hold dual nationality with two EU Member States (or at least civil records in two of them), and have been able to obtain LGR in one of them.
But the decision embodies the functional, second-order role in which the Court of Justice constrains fundamental rights, in matters of free movement. The first stop of the reasoning must be free movement – fundamental rights concerned are triggered only if States attempt to limit that freedom. The fact that the solution is legally coherent, due to the limitations established in article 51(2) CFR, does not make it satisfactory from a human rights perspective. The CJEU could at the very least have put on an equal level the potential violation of the freedom of movement and of the right to privacy and family life (Article 7 CFR). A stand-alone violation of the CFR may have been legally dubious in this case (probably why the applicants do not seem to have framed their arguments this way), but there was space to still give more preeminence to EU fundamental rights. Advocate General (AG) de la Tour had presented his Opinion “based on the twofold requirement of personal autonomy (…) and freedom of movement of Union citizens” (para 92), like two equally important branches of the problem.
Instead, the Court concludes with the noncommittal formula of the basis for the decisions being “Article 20 and Article 21(1) TFEU, read in the light of Articles 7 and 45 of the Charter” (para 72). What, exactly, is the legal significance of “in light of”? Is there, or is there not, a standalone risk of violation of Article 7, related but separate from Articles 20 and 21? Arguably, the Court finds none, since as mentioned before, the solution was virtually reached at paragraph 61, before any discussion of Article 7 CFR.
The discussion of fundamental rights in the aparte second half of the ruling gives the impression that they are an integral part of the judgement, when they are not. This feels like a step back after the CJEU had developed a fairly progressive case law on trans rights, including on LGR, where Article 7 CFR featured more pre-eminently.
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Negative space in judicial reasoning: The delicate art of sidestepping issues
AG de la Tour, in his Opinion, had spent a substantial amount of time trying to reconcile updating the gender of the applicant on Romanian civil records and not stepping into issues of marriage and filiation. The rationale for such an analysis was the Court’s own standing jurisprudence that personal status ‘is relevant to the rules on marriage and parentage’, making it a difficult area for the Court to navigate, competence-wise (para 38), as per the Pancharevo and Coman cases.
The AG had offered a compromise that he himself had found unsatisfactory: a dissociation between the travel documents and the civil registry. Since this issue was only raised when the applicant was to cross borders and travel, then it would be solved by ensuring congruence of the different travel documents – but not necessarily of the different birth registrations. Unsatisfactory, of course, as the applicant would now have two sets of documents under Romanian law – one with the original female gender marker, and another for travelling proposes, with a male gender marker. A solution which, in his own words, “does not satisfy the requirement of a life without administrative obstacles in the case of the citizen’s return”, but the only one which respected Member States competences.
How did the Court solve this arguably enormous conundrum?
It did not.
The solution of the AG may have been imperfect, but it was addressing, head-on, a real challenge with LGR in domestic legal orders without queer-friendly legislation. The Court does not endorse the AG’s solution, whose conclusion included the explicit mention that “EU law does not detract from the competence of the Member States to regulate, in their national law, the effects of that recognition and that entry on other civil status documents and in relation to the status of persons, including the rules on marriage and parentage.” (para 101). There is no similar mention of what is left up to Member States, in the Court’s operative section. Luxembourg judges did mention the Pancharevo and Coman cases, but only to stress that ‘Union citizenship is destined to be the fundamental status of nationals of the Member States’ (para 51), a statement resolutely absent from the AG’s Opinion.
Luckily, that does not seem to be an issue for the situation at hand: nothing in the application, the AGs conclusions or the Court’s ruling, indicates that the applicant is married under Romanian law, or has any children with whom parentage is established under Romanian law either. It is a hypothetical, but not one that the Court is willing to engage in, this time. A shame, as there is a risk that the applicability of the Mirin-style solution to a trans persons who is married or with children would be questioned by administrations or judges in Romania or elsewhere, forcing the question to be brought yet again to the CJEU.
So why the enthusiasm of the Court for the Article-7-CFR hypothetical, but not for the filiation-marriage hypothetical, that the AG had found much more important to address?
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Signalling goodwill to Strasbourg
This is where we can note the major role that is given to the ECtHR’s case law on LGR, from paragraph 62 onward. The CJEU goes out of its way to explicitly claim an alignment of Article 7 CFR with Article 8 ECHR (nothing new per se), confirming that the ECHR is just a minimum standard, which the EU legal order can never go below, only higher (para 63). It describes very carefully, using a similar vocabulary to the Strasbourg Court, how the ECHR established a right to LGR in 2002. It engages in familiar discussions about the positive and negative obligations of States, their limited margin of appreciation, and the requirement to have clear, foreseeable, transparent procedures of LGR. The Court even gives a place of choice to the X and Y v Romania case, both for its general standard-setting and its criticism of the Romanian LGR specifically. Why?
One cannot help but note the timing of it: negotiations on the Accession of the EU to the ECHR had been at a dead end since March 2023, with a temporary draft agreement that left it up to the EU to resolve the remaining issues internally. In May 2024, multiple States reiterated their support for accession, Greece stressing this required “showing the necessary political will”, while the Committee of Ministers at large indicated it was waiting on the EU to solve their internal issues, reminding all of the importance of the “coherence of the European human rights protection system”. A month later, the ECtHR hosted a seminar on “The articulation between the Convention and EU Law: past, present and future”. Then ECtHR President Siofra O’Leary noted that “accession remains the subject of political negotiations and possible legal developments at EU level”. Just two months ago, Johan Callewaert from the Registrar of the ECtHR commented on the “mutual respect of both systems and the urgent need for them to cooperate in a more integrated manner, so as to be fit for future challenges while avoiding a fragmentation of fundamental rights in Europe“.
