Extending Legal Gender Recognition to Transgender Refugees: Rana V. Hungary

By: MANSI AVASHIA


In a historic verdict for the LGBT community, the European Court of Human Rights has, for the first time, conferred legal gender recognition rights on transgender refugees (Source: Unsplash).

In July 2020, the European Court of Human Rights [“ECtHR”] in Rana v. Hungary set a landmark precedent by extending the right of legal gender recognition for transgender refugees.[1] By doing so, the ECtHR has acknowledged the hurdles faced by migrants approaching their country of residence for changes in gender identity, despite being persecuted for the same in their country of origin.[2] The judgment has been appreciated by many transgender advocates.[3]

The applicant was Mr. Jafarizad Rana, an Iranian national residing in Budapest. Mr. Rana was born as a female, but identified as a male from a young age.[4] His asylum application to Hungary was accepted by the authorities because it was found that he had faced persecution in Iran because of his sexuality.[5] Subsequently, he applied for gender and name change to the Hungarian Immigration and Citizenship Office [“the Office”].[6]

The Office informed him that they did not have the jurisdiction to forward the application to the Registrar of Births, Marriages, and Deaths because Rana was not born in Hungary, without looking into the merits of the issue.[7] His review application was rejected by the Constitutional Court on the grounds that there was no statutory power allowing names of non-Hungarian citizens to be changed.[8] It was also held that since the law did not provide adequate protection towards non-Hungarian citizens residing in the country lawfully, it was unconstitutional and restrictive.[9] Despite this judgment, no change was brought about in the legislative framework.[10]

Mr. Rana contended before the ECtHR that the action of the authorities violated Article 8 of the European Convention on Human Rights [“ECHR”] which guarantees respect for private life.[11] The ECtHR held that Article 8 protects personal identity, which includes gender identity and names.[12] Pursuant to this article, the Hungarian authorities were required to strike a fair balance between the applicant’s interests and the community as a whole.[13]

The Hungarian Government argued that he should have his gender change registered in Iran.[14] The ECtHR observed although States were free to determine whether they had suitable policies in place, they had a narrow scope for integral aspects of personal identity such as name and gender.[15] In the past, the Court had held that the absence of legal gender recognition amounts to interference in an individual’s private life and hence, it was a positive obligation under Article 8 to have proper procedures in place.[16]

In the present case, it was held that since there was no provision for lawfully settled non-Hungarian citizens to change their name and gender, there was an excessive interference with their right to dignity.[17] The Court found that Article 8 of the ECHR had been violated since a fair balance between Mr. Rana’s right to private life and public interest had not been struck by the Hungarian authorities.[18] Thus, the ECtHR has clarified that the positive obligation under Article 8 to legal recognition of gender identity extends to lawful non-citizens also.[19]

The ruling is particularly significant since in May 2020, the Hungarian Parliament had approved a law which effectively banned recognizing gender after birth by basing it on ‘chromosomes at birth’.[20] The incumbent Prime Minister Viktor Orbán’s party has prohibited same sex marriages and ‘temporarily’ banned gender changes since 2017.[21] Multiple cases with similar facts had been filed against the Hungarian Parliament in the last 3 years, since the inadequate framework was adversely impacting citizens as well as migrants.[22] Thus, the judgment plays a pivotal role since it protects human rights principles in Hungary and has extended gender identity rights to refugees also.

[1] Rana v. Hungary, Application No. 40888/17 (2020), available at https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-203563%22]} [hereinafter “Rana v. Hungary”].
[2] Third Party Intervention in Rana v. Hungary, https://tgeu.org/third-party-intervention-in-rana-v-hungary/ (last visited September 14, 2020).
[3] Heather Cassell, European Court rules Hungary must recognize gender identity, The Bay Area Reporter (Jul. 22, 2020), https://www.ebar.com/news/news//295170 [hereinafter “Cassell”].
[4] Rana v. Hungary, supra note 1, at ¶5.
[5] Id. at ¶7.
[6] Id. at ¶8.
[7] Id. at ¶10.
[8] Id. at ¶13.
[9] Id.
[10] Id.
[11] Id. at ¶18.
[12] Id. at ¶24.
[13] Id. at ¶38.
[14] Id. at ¶34.
[15] Id. at ¶39.
[16] Christine Goodwin v. the United Kingdom, Application No. 28957/95 (2002).
[17] Rana v. Hungary, supra note 1, at ¶40.
[18] Id. at ¶42.
[19] Cassell, supra note 2.
[20] Id.
[21] Pablo Gorondi, European Union Takes Legal Action Against Hungary on NGO Law, Courthouse News Service, (Jul. 13, 2017), https://www.courthousenews.com/.
[22] Cassell, supra note 2.

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