CASE OF E.G. AND OTHERS v. HUNGARY

FIRST SECTION

CASE OF E.G. AND OTHERS v. HUNGARY

(Application no. 12918/19)

JUDGMENT
 

STRASBOURG

21 November 2024

This judgment is final but it may be subject to editorial revision.

In the case of E.G. and Others v. Hungary,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

 Alena Poláčková, President,
 Péter Paczolay,
 Alain Chablais, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 12918/19) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 February 2019 by 18 Hungarian nationals, relevant details listed in the appended table (“the applicants”), who were represented by Ms B. Bodrogi, a lawyer practising in Budapest;

the decision to give notice of the application to the Hungarian Government (“the Government”), represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice;

the decision not to have the applicants’ names disclosed;

the parties’ observations;

the comments submitted by Ordo Iuris Institute for Legal Culture, who were granted leave to intervene by the President of the Section;

Having deliberated in private on 24 October 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the alleged lack of a regulatory framework for the legal recognition of the change of the applicants’ sex/gender marker in the register of births.

2.  For the relevant background information to the case see the judgment in R.K. v. Hungary, (no. 54006/20, §§ 4-13, 22 June 2023).

3.  On various dates in 2018 and 2019, the applicants lodged requests with the Budapest Government Office to have their names and sex markers changed in the register of births to correspond to their gender identity (see the appended table for details). They attached to their request medical reports from a gynaecologist or urologist, a specialist clinical psychologist and a psychiatrist, together with a declaration of family status and the new name chosen.

4.  On various dates they received a letter from the Budapest Government Office informing them that there was no governmental agency with jurisdiction to decide whether the medical documents submitted by them in support of their requests for the legal recognition of their gender identity were admissible and what constituted an official “supporting expert medical opinion”. The letters noted that, previously, supporting expert medical opinions had been issued by the Ministry of Human Resources, but following the entry into force of the General Data Protection Regulation, new procedural rules were necessary. The applicants were informed that they could request the transfer of their cases to the local registrar of births. However, the Budapest Government Office would not issue an official notification nor commission a supporting expert medical opinion, both prerequisite for registration.

5.  Applicants nos. 7 and 16 in the appended table, K.H. and ZS.S., asked the Government Office to transmit their requests directly to the local registrars, without an official notification from the Government Office and without the supporting expert medical opinion from the Ministry of Human Resources. On 17 July 2019 the local registrar allowed K.H.’s request and registered the changes in his name and sex marker. ZS.S.’s request was dismissed, so she initiated proceedings for a judicial review of the decision. On a subsequent date, the Government Office recognised her gender change, without providing further reasons.

6.  From June to November 2020, following the entry into force on 29 May 2020 of the amendments to Act no. I of 2010 on Civil Registration Procedure ruling out the change of sex assigned to a person at birth in the registry, applicants nos. 2, 3, 4, 6, 8, 10, 11, 12, 15 and 18 in the appended table, P.Á., Z.B., T.CS., N.G., K.J., L.K., N.M., G.M., A.R. and D.SZ., received a decision either from the public notary or from the Government Office refusing their requests for legal gender recognition. According to the reasoning, their files did not contain the requisite official notification on gender reassignment or the supporting expert medical opinion. Furthermore, due to the legislative changes of 29 May 2020, the sex at birth could not be changed in the register. Applicant no. 1, E.G., did not receive any formal decision on her request.

7.  Applicants Z.B., K.J., L.K., N.M., G.M., A.R. and D.SZ. sought judicial review of the administrative decisions.

8.  The courts seized suspended these proceedings, taking into account a case pending before the Constitutional Court challenging the retroactive application of the amendments to Act no. I of 2010 to ongoing requests (see R.K. v. Hungary, cited above, § 28).

9.  In the case of applicant no. 18, D.SZ., in the resumed proceedings the court overturned the administrative decision and remitted the case to the Szeged Mayor’s Office on the grounds that the administrative authority had based its decision on an unconstitutional and inapplicable provision.  On 22 June 2022 the Budapest Government Office commissioned a psychiatric expert opinion. On 17 November 2022 it informed D.SZ. that his request had been forwarded to the local registrar, together with the supporting medical expert opinion, and that he could proceed with the change of his name and gender marker in the birth register and in his official documents.

10.  In the case of applicant no. 8, K.J., the Miskolc High Court resumed the proceedings, overturned the administrative decision and remitted the case to the administrative authority.  The Budapest Government Office commissioned a forensic psychiatric expert opinion and on 26 January 2023 informed K.J. that her file had been transferred to the local registrar to proceed with the registration of the change of her gender marker. Furthermore, she could lodge a request to have her official documents changed.

11.  In the case of applicant no. 15, A.R., on an unspecified date the Szeged High Court ordered the reopening of the administrative proceedings. A.R. attended a medical expert examination. On 15 November 2022 the Szeged Mayor’s Office informed him that his name and sex marker had been changed in the birth register.

12.  In the case of applicant no. 10, L.K., the Budapest Surroundings High Court overturned the administrative decision and remitted the case to the Budapest Government Office, pointing out that although the procedure to change the gender marker, and in particular the rules pertaining to the requisite medical expert opinion, had not been regulated, it was up to the Government Office to obtain the evidence it considered necessary. On 24 August 2022 the Government Office appointed a forensic psychiatric expert to establish whether the change of L.K.’s gender marker and name was necessary.  On 24 November 2022 the Budapest Government Office informed L.K. that her file had been transmitted to the relevant registrar and that she could make a request for the changes to be registered in her birth certificate and in her official documents.

13.  In the case of applicant no. 12, G.M., the Budapest High Court overturned the administrative decision and remitted the case to the Budapest VIII District Józsefváros Mayor’s Office on 2 September 2022. The court pointed out that the fact that the Ministry of Human Resources had stopped issuing medical expert opinions could not deprive the petitioners of their right to have their names changed in the register. Administrative authorities were free to accept the medical expert opinions submitted by petitioners or to proceed with their own evidence taking.  On 22 June 2023 G.M. was informed that his file had been transferred to the registrar to register the changes in his birth certificate and that he should make a request for the changes to be registered in his identification documents as well.

14.  In the case of applicant no. 11, N.M., the Debrecen High Court remitted the case to the administrative authority on an unspecified date. On 26 September 2023 N.M. was informed that his file had been transmitted to the relevant registrar and that he could make a request for the changes to be registered in his official documents.

15.  In the case of applicant no. 3, Z.B., on 24 May 2022 the Veszprém High Court overturned the administrative decision and remitted the case to the Government Office. It pointed out that, at the material time, the applicable law allowed for the recognition of changing the sex marker, although the procedure had not been regulated. The Budapest High Court emphasised that Z.B. had provided medical evidence of her gender reassignment and provided three medical expert opinions supporting the change of her gender marker and no further evidence was needed.  On 16 August 2023 Z.B. was informed that her file had been transmitted to the relevant registrar and that she could make a request for the changes to be registered in her official documents.

16.  On 9 February 2023 applicant no. 1, E.G., who had not previously received any formal decision regarding her request, was informed that a medical expert had been appointed to her case. On 26 September 2023 she received a letter from the Government Office informing her that she could proceed with changing her birth certificate and her official documents.

17.  The applicants complained under Article 8 of the Convention of the lack of a regulatory framework for the legal recognition of their gender identity.

THE COURT’S ASSESSMENT

18.  In their observations of 18 August 2020, ZS.S. and K.H.’s representative informed the Court that her clients wished to withdraw their applications to the Court. By a letter of 24 November 2021, she informed the Court that A.K. also wished to withdraw her application to the Court.

19.  On 12 April 2023 the representative of B.D., B.P., C.P. and B.SZ. informed the Court that she had lost contact with her clients. She did not insist that the Court nonetheless continue the examination of the application regarding these applicants (contrast V.M. and Others v. Belgium (striking out) [GC], no. 60125/11, § 32, 17 November 2016).

20.  In the light of the foregoing, and in the absence of any special circumstances regarding respect for the rights guaranteed by the Convention and the Protocols thereto, the Court, in accordance with Article 37 § 1 (a) of the Convention, considers that it is no longer justified to continue the examination of the part of the application lodged by applicants nos. 5, 7, 9, 13, 14, 16 and 17 (B.D., K.H., A.K., B.P., C.P., ZS.S. and B.SZ).

21.  In view of the above, it is appropriate to strike this part of the application out of the list.

22.  The Court observes that the applicants lodged a request for the legal recognition of their gender reassignment on various dates in 2018 and 2019 and that their requests were granted in 2022 and 2023 due to a change in the practice of the domestic authorities. Thus, their cases were decided on the merits and the applicants were able to obtain legal recognition of their gender reassignment.

23.  In the light of these new developments brought to its attention since the lodging of the application, the Court considers that, for the reasons set out below, there is no objective justification for continuing to examine these complaints.

24.  In order to ascertain whether Article 37 § 1 (b) applies to the present case, the Court must answer two questions in turn: first, whether the circumstances complained of directly by the applicants still obtain and, second, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, § 30, 20 December 2007). In the present case, that entails first of all establishing whether the refusal to register the applicants’ gender identity persists; and the Court must consider whether the measures taken by the authorities constitute sufficient redress for the applicants’ complaint.

25.  As to the first question, the Court observes that applicants E.G., Z.B., K.J., L.K., N.M., G.M., A.R. and D.SZ. are no longer prevented from having their gender change registered. As regards the second question, the Court is mindful of the fact that, due to inconsistencies in domestic law and practice, the proceedings lasted some 4 to 5 years. It does not disregard the fact that this period must have left the applicants in a situation of uncertainty in respect of the recognition of their gender identity. However, since the applicants’ request has been granted and the change of the applicants’ name and gender marker has been registered, the Court considers, in the light of all the relevant circumstances of the case, that their complaints have been adequately and sufficiently remedied.

26.  Having regard to the above, the Court finds that both conditions for the application of Article 37 § 1 (b) of the Convention are met. The matter giving rise to the applicants’ complaints can therefore now be considered to be “resolved” within the meaning of Article 37 § 1 (b). Finally, no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue its examination of the application under Article 37 § 1 in fine.

27.  Accordingly, the application in respect of applicants E.G., Z.B., K.J., L.K., N.M., G.M., A.R., and D.SZ. should be struck out of the Court’s list of cases.

28.  The Government requested the Court to declare the applications inadmissible for failure to exhaust domestic remedies since the applicants had not sought judicial review and subsequently constitutional review of the administrative decisions rejecting their request for the legal recognition of their gender identity.

29.  The applicants disputed the Government’s arguments. They submitted that, at the material time, the substantive law on gender recognition had been incomplete and lacked clear responsibilities and rules of procedure. These legal lacunae could not have been remedied by judicial proceedings.

30.  The Court has previously rejected the Government’s argument as to the effectiveness of these proceedings essentially on the grounds that, given the lacunae in and inconsistent application of domestic law, any conclusion at the material time as to whether the pursuit of those legal avenues would have resulted in the applicants’ preferred gender legally being recognised was close to speculation (see R.K. v. Hungary, cited above, §§ 65-67 and 77).

31.  The Court notes that the domestic authorities seem to have harmonised their approach towards the legal recognition of gender change and, in particular, towards the applicable procedure and the admissibility of evidence in the case of pending requests lodged before 29 May 2020. It appears that these changes occurred some three years after the introduction of the present application, namely following the judgments delivered by the Constitutional Court in 2021 and subsequently by the Kúria in 2022 (see R.K. v. Hungary, cited above, §§ 13, 30-32, and 72).

32.  The Court reiterates that the exhaustion of domestic remedies is generally assessed on the date of submission of the application (see Baumann v. France, no. 33592/96, § 47, ECHR 2001-V (extracts)). In view of the above, the Court considers that in the present case it has not been demonstrated that, at the material time, Hungarian legislation as applied by the domestic authorities provided with a sufficient degree of certainty a legal basis for the applicants to seek remedy before the domestic courts for the rejection of their requests for legal gender recognition.

33.  Having regard to the above considerations, the Court dismisses the Government’s preliminary objections relating to non-exhaustion of domestic remedies.

34.  The Court further notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

35.  The applicants submitted that legal gender recognition was an important element of their private life as protected by Article 8 of the Convention. They argued that their request for the legal recognition of their gender identity had not been processed or had been refused owing to the deficiencies of the legal regulation at the material time.

36.  The Government submitted that the domestic law, as in force at the material time, had provided for the recognition of gender change, as evidenced by the fact that a number of petitioners had obtained the legal recognition of their gender identity. They argued that the subsequent changes in domestic legislation concerning the change of gender markers were irrelevant in the circumstances of the present case. In the Government’s view the applicants’ failure to pursue domestic proceedings evidenced that ultimately the applicants had not intended to have their gender change registered.

37.  The third-party intervener, Ordo Iuris, suggested that the margin of appreciation of States in the legal recognition of gender reassignment should be wide, given that it raised serious moral and social controversies. It stated that gender reassignment of a parent could seriously affect his or her child’s psychological development. Moreover, information in birth certificates should be truthful and contain biological facts, not wishes, for the sake of legal certainty and in the interests of children in knowing their biological origins.

38.  The relevant Convention principles under Article 8 on the State’s positive obligations concerning legal gender recognition have been summarised in the Court’s judgment in the case of Hämäläinen v. Finland [GC], no. 37359/09, §§ 65-68, ECHR 2014, and X v. the former Yugoslav Republic of Macedonia, no. 29683/16, § 70, 17 January 2019.

39.  The Court has previously found a violation of Article 8 in respect of Hungary in the case of R.K. v. Hungary (cited above) where a transgender person was unable to have his “sex/gender marker” on the birth certificate changed to match his gender identity due to lack of a regulatory framework.

40.  The present case concerns a similar issue, where the applicants’ requests for the legal recognition of their gender identity were rejected, citing failure to comply with the statutory requirements. In reality, however, the regulatory framework at the material time lacked any clarification of the nature of the requisite evidence, the authority competent to attest to the change of “sex/gender marker” and to issue a supporting expert medical opinion, a prerequisite of registration. This, in turn, led to an inconsistent practice by the administrative authorities and eventually constituted an effective obstacle to the applicants’ exercise of their right to legal gender recognition.

41.  The Court is mindful of the changed domestic practice as to the applicable rules and procedure for pending requests lodged before 29 May 2020. The Court, however, considers that the applicants’ situation did not change with the adoption of the decisions of the Constitutional Court and the Kúria, as these were delivered years after the lodging of their applications with the Court and after the refusal of their request for the recognition of their gender identity. It observes that the decision of the higher-level courts did not affect those situations, including that of applicants N.G., T.CS. and P.Á., where proceedings were no longer pending, as the authorities had already dismissed the request for the legal recognition of gender identity due to the legal lacuna.

42.  The Court observes in this respect that in practice the applicants would have no other means but to submit a new request for the change of their “sex/gender marker” in the register, which is in turn ruled out under the legislation currently in force.

43.  The Court finds that the circumstances of the present case reveal legislative gaps and serious deficiencies that left the applicants in a situation of distressing uncertainty vis-à-vis their private life and the recognition of identity. As stated above, this situation, for which the national authorities bore sole responsibility, is having long-term negative consequences for the applicants’ 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 (see R.K. v. Hungary, cited above, § 76).

44.  In the light of the above considerations, the Court concludes that there has been a violation of Article 8 of the Convention on account of the lack of a regulatory framework ensuring the right to respect for the private life of applicants nos. 2, 4 and 6 (P.Á., T.CS. and N.G.).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

45.  Applicants nos. 2, 4 and 6 (P.Á., T.CS. and N.G.) claimed 20,000 euros (EUR) each, in respect of non‑pecuniary damage. They also claimed EUR 7,200 jointly, for the costs and expenses incurred before the domestic courts and those incurred before the Court. This sum corresponds to 160 hours of legal work billable by their lawyer at an hourly rate of EUR 45.

46.  The Government objected to the amounts claimed.

47.  Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards applicants nos. 2, 4 and 6 (P.Á., T.CS. and N.G.) EUR 10,000 each in respect of non-pecuniary damage, plus any tax that may be chargeable.

48.  Having regard to the documents in its possession, the Court considers it reasonable to award jointly to applicants nos. 2, 4 and 6, EUR 2,000 covering all costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicants P.Á., T.CS. and N.G., within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 10,000 (ten thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,000 (two thousand euros) jointly, plus any tax that may be chargeable to these applicants, in respect of costs and expenses;

(b)  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;

Done in English, and notified in writing on 21 November 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Alena Poláčková
 Deputy Registrar President

APPENDIX

List of applicants:

No.

Applicant’s Name and individual situation

Year of birth

Place of residence

Date of request lodged with the Government Office

1.

E.G.

registered as male at birth and has been living as a woman since June 2018

1998

Százhalombatta

17 December 2018

2.

P.Á.

registered as male at birth and has been living as a woman since 2014

1995

Komló

4 September 2018

3.

Z.B.

registered as male at birth and has been living as a woman since 2014

1989

Gyöngyös

27 November 2018

4.

T.CS.

registered as male at birth and has been living as a woman since 2014

1964

Polgárdi

27 May 2018

5.

B.D.

registered as female at birth and has been living as a man since 2005

1992

Nagybajom

12 December 2018

6.

N.G.

registered as male at birth and has been living as a woman since many years

1998

Pécs

17 July 2018

7.

K.H.

registered as female at birth and has been living as a man since 2013

2000

Nyíregyháza

26 June 2018

8.

K.J.

registered as male at birth and has been living as a woman since 2018

1991

Budapest

8 July 2018

9.

A.K.

registered as male at birth and is living as a woman. She started to receive hormone treatment in August 2018

1993

Tura

25 October 2018

10.

L.K.

registered as male at birth and has been living as a woman since 2017

1999

Dunakeszi

23 July 2018

11.

N.M.

registered as female at birth and has been living as a man since 2017

1992

Budapest

9 January 2019

12.

G.M.

registered as female at birth and has been living as a man since mid-2018

1979

Budapest

25 October 2018

13.

B.P.

registered as female at birth and has been living as a man since 2015

2000

Maglód

8 November 2018

14.

C.P.

registered as male at birth and has been living as a woman since 2014

2000

Ráckeve

10 June 2018

15.

A.R.

registered as female at birth and has been living as a man since mid-2017

1984

Szeged

10 December 2018

16.

ZS.S.

registered as male at birth and has been living as a woman since June 2018

1991

Budapest

3 August 2018

17.

B.SZ.

registered as female at birth and has been living as a man since 2017

1999

Budapest

14 February 2018

18.

D.SZ.

registered as female at birth and has been living as a man since 2017

2000

Makó

20 July 2018