DATA PROTECTION
EU Court of Justice: the rectification of data relating to gender identity cannot be subject to proof of surgical treatment.
In 2014, VP, a person of Iranian citizenship, obtained refugee status in Hungary by invoking his transidentity and producing medical certificates issued by specialists in psychiatry and gynecology. According to these certificates, even though that person was born a woman, his gender identity was male. Following the recognition of her refugee status on that basis, that person was, however, entered as a woman in the asylum register, kept by the Hungarian asylum authority and containing the identification data, including gender, of the persons who had obtained that status in Hungary.
In 2022, on the basis of the same medical certificates, VP requested that authority in particular to rectify the
the indication of his or her gender in this register, in accordance with the General Data Protection Regulation (GDPR). However, that application was rejected on the ground that VP had not demonstrated that he had undergone sex reassignment surgery.
VP brought an appeal against that rejection before the Budapest High Court (High Court, Hungary). While stating that Hungarian law does not provide for a procedure for the legal recognition of transidentity, that court asks the Court of Justice whether, first, the GDPR requires a national authority responsible for keeping a public register to rectify personal data relating to the gender identity of a natural person where those data are inaccurate and, Secondly, may a Member State make the exercise of the right to rectification of those data subject by administrative practice to the production of evidence, inter alia, of surgical sex reassignment treatment?
In its judgment in Case C-247/23, in the first place, the Court observes that, under the GDPR and, in particular, the principle of accuracy laid down by the GDPR, the data subject has the right to obtain from the controller, without undue delay, the rectification of personal data relating to him or her which are inaccurate. That regulation thus gives concrete expression to the fundamental right, enshrined in the Charter of Fundamental Rights of the European Union ('the Charter')4, according to which everyone has the right of access to and rectification of the data that has been collected concerning him or her. In that regard, the Court points out that the accuracy and completeness of those data must be assessed in the light of the purpose for which they were collected.
In the present case, after observing that the processing at issue falls within the material scope of the GDPR, the Court states that it is for the Hungarian court to verify the accuracy of the data in question in the light of the purpose for which it was collected. If the collection of that data was intended to identify the data subject, that data would appear to relate to the gender identity experienced by that person, and not the gender identity assigned to him or her at birth. In that context, the Court states that a Member State may not rely on the absence, in its national law, of a procedure for the legal recognition of transidentity in order to hinder the exercise of the right of rectification. Although EU law does not affect the competence of the Member States in the field of the civil status of persons and the legal recognition of their gender identity, those States must, however, in exercising that competence, comply with EU law, including the GDPR, read in the light of the Charter.
Consequently, the Court concludes that the GDPR must be interpreted as requiring a national authority responsible for keeping a public register to rectify personal data relating to the gender identity of a natural person where those data are inaccurate, within the meaning of that regulation.
In the second place, the Court finds that, for the purposes of exercising his or her right to rectification, that person may be required to provide the relevant and sufficient evidence that may reasonably be required to establish the inaccuracy of that data. However, a Member State may under no circumstances make the exercise of the right of rectification subject to the submission of evidence of surgical sex reassignment treatment. Such a requirement undermines, in particular, the essence of the right to the integrity of the person and the right to respect for private life, referred to in Articles 3 and 7 of the Charter respectively. Furthermore, such a requirement is not, in any event, necessary or proportionate in order to ensure the reliability and consistency of a public register, such as the asylum register, since a medical certificate, including a previous psychodiagnosis, may constitute relevant and sufficient evidence in that regard.
In 2022, on the basis of the same medical certificates, VP requested that authority in particular to rectify the
the indication of his or her gender in this register, in accordance with the General Data Protection Regulation (GDPR). However, that application was rejected on the ground that VP had not demonstrated that he had undergone sex reassignment surgery.
VP brought an appeal against that rejection before the Budapest High Court (High Court, Hungary). While stating that Hungarian law does not provide for a procedure for the legal recognition of transidentity, that court asks the Court of Justice whether, first, the GDPR requires a national authority responsible for keeping a public register to rectify personal data relating to the gender identity of a natural person where those data are inaccurate and, Secondly, may a Member State make the exercise of the right to rectification of those data subject by administrative practice to the production of evidence, inter alia, of surgical sex reassignment treatment?
In its judgment in Case C-247/23, in the first place, the Court observes that, under the GDPR and, in particular, the principle of accuracy laid down by the GDPR, the data subject has the right to obtain from the controller, without undue delay, the rectification of personal data relating to him or her which are inaccurate. That regulation thus gives concrete expression to the fundamental right, enshrined in the Charter of Fundamental Rights of the European Union ('the Charter')4, according to which everyone has the right of access to and rectification of the data that has been collected concerning him or her. In that regard, the Court points out that the accuracy and completeness of those data must be assessed in the light of the purpose for which they were collected.
In the present case, after observing that the processing at issue falls within the material scope of the GDPR, the Court states that it is for the Hungarian court to verify the accuracy of the data in question in the light of the purpose for which it was collected. If the collection of that data was intended to identify the data subject, that data would appear to relate to the gender identity experienced by that person, and not the gender identity assigned to him or her at birth. In that context, the Court states that a Member State may not rely on the absence, in its national law, of a procedure for the legal recognition of transidentity in order to hinder the exercise of the right of rectification. Although EU law does not affect the competence of the Member States in the field of the civil status of persons and the legal recognition of their gender identity, those States must, however, in exercising that competence, comply with EU law, including the GDPR, read in the light of the Charter.
Consequently, the Court concludes that the GDPR must be interpreted as requiring a national authority responsible for keeping a public register to rectify personal data relating to the gender identity of a natural person where those data are inaccurate, within the meaning of that regulation.
In the second place, the Court finds that, for the purposes of exercising his or her right to rectification, that person may be required to provide the relevant and sufficient evidence that may reasonably be required to establish the inaccuracy of that data. However, a Member State may under no circumstances make the exercise of the right of rectification subject to the submission of evidence of surgical sex reassignment treatment. Such a requirement undermines, in particular, the essence of the right to the integrity of the person and the right to respect for private life, referred to in Articles 3 and 7 of the Charter respectively. Furthermore, such a requirement is not, in any event, necessary or proportionate in order to ensure the reliability and consistency of a public register, such as the asylum register, since a medical certificate, including a previous psychodiagnosis, may constitute relevant and sufficient evidence in that regard.
