The new interpretative decision of the Supreme Judicial Council (SJC) regarding the legal gender change is in contradiction with international human rights standards
On February 20, 2023, the Supreme Court of Cassation (SCC) issued the long-awaited interpretative decision on the admissibility and conditions under which the court may allow changes in the civil status documents of a petitioner who claims to be transgender.
The aim of this decision is to harmonize the conflicting judicial practices in Bulgaria, where in some cases transgender individuals were allowed to change the recorded gender in their civil status documents, while in other cases, such requests were denied. The judicial practice was not clear regarding whether individuals must have undergone a medical procedure to change their gender before or after the change in the registers.
After two previous interpretative decisions and a decade-long judicial practice that allowed such changes, the current interpretative decision of the SCC surprisingly categorically rejects the possibility for transgender individuals in Bulgaria to achieve a legal gender change. This decision also provides mandatory guidelines to the courts to reject all pending or future applications for gender change. At present, there are dozens of pending applications, and all of them are likely to be rejected.
The Supreme Court of Cassation (SCC) relies on non-legal categories such as religion and morality, which also served as the basis for Decision No. 15 of October 26, 2021, Case No. 6/2021 of the Constitutional Court, where the Constitutional Court ruled that in Bulgaria, gender has solely and exclusively a biological dimension. The SCC does not use scientific arguments explaining why transgender individuals resort to medical and legal gender changes and what significance it holds for them. Instead, it substitutes the scientific achievements of psychology and medicine with notions of accepted morality and religious dogmas, which are not inherent in a secular state claiming to be based on the rule of law. The decision lacks references to universally recognized legal principles such as equality, freedom, justice, and respect for human dignity. Instead, all of these are replaced by the vague and general category of "public interest."
All references in the SCC's decision to international legal norms and the practice of the European Court of Human Rights (ECHR) or the Court of Justice of the European Union (CJEU) are distorted and misinterpreted. In the case of Y.T. v. Bulgaria (Application No. 41701/16, judgment of July 9, 2020), the ECHR established that our country violated the European Convention on Human Rights by basing its refusal for legal gender change on the vague notion of "public interest," which was undefined, and used without examining its actual meaning and without striking a balance between personal and asserted public interest.
The Supreme Court (SC) argues that the European Convention on Human Rights does not have primacy over the country's domestic law, has no direct applicability, and completely disregards the norm of Article 5, paragraph 4 of the Constitution. The logic of the majority of judges is difficult to trace. This was also discussed in the separate opinion attached to the decision, signed by 21 judges. The conclusion of the majority effectively limits the scope of application of Article 8 of the ECHR concerning transgender individuals in Bulgaria.
The practice of the CJEU is misrepresented as well, where the Court's pronouncements on cases with facts not corresponding to the question raised in the interpretative case lead to the generalized conclusion that "the Court of the EU leaves the regulation of civil status and marriage within the autonomy of the Member States of the Union." This is only partially correct, and such pronouncements are directly related to the subject matter of each specific case considered by the CJEU. Therefore, they cannot serve as the main argumentation for the Supreme Court judges in their interpretative decision, which should be based more on universally accepted principles and norms such as the Charter of Fundamental Rights of the EU or established case law of the CJEU, rather than drawing general conclusions from specific cases. In its decision, the SCC does not discuss the relevant practice of the CJEU and the interpretation of Union legal norms in the context of cases involving transgender individuals. [1]
The supreme judges do not discuss and consider the soft standards of international law (soft-law) - those of the United Nations and the Council of Europe - relevant to the issue at hand, in order to allow the interpretation of the law in line with them and with a view to general principles of law.
The representation of the practice of the CJEU is distorted as well, where the Court's pronouncements on cases with facts not corresponding to the question raised in the interpretative case lead to the generalized conclusion that "the Court of the EU leaves the regulation of civil status and marriage within the autonomy of the Member States of the Union." This is only partially true, and such pronouncements are directly related to the subject matter of each specific case considered by the CJEU. Therefore, they cannot serve as the main argumentation for the Supreme Court judges in their interpretative decision, which should be based more on universally accepted principles and norms such as the Charter of Fundamental Rights of the EU or established case law of the CJEU, rather than drawing general conclusions from specific cases. In its decision, the SC does not discuss the relevant practice of the CJEU and the interpretation of Union legal norms in the context of cases involving transgender individuals. [1]
The Supreme Court judges do not discuss the soft-law standards of international law - those of the United Nations and the Council of Europe - related to the presented question, in order to allow the interpretation of the law in accordance with them, considering general principles of law.
Such a prohibition on changing entries in civil status registers is not derived from the Constitution, the laws of the country, and even less from international treaties, which are part of the domestic law. This addition of a non-existent prohibition shows a decline in legal thinking, a lack of knowledge of modern achievements in legal science, and a lack of attention to or respect for fundamental legal principles in the rule of law.
The decision leads to an absolute prohibition on legal gender change unless specific legislation is adopted in this direction. Given the fierce opposition to the changes in the Law on Protection against Domestic Violence in the 48th National Assembly, based on emotional, pseudo-scientific, and unjustified concepts, such as the existence of a third gender, it cannot be expected that the legislator would demonstrate more reason in regulating the matter of legal gender change.
The decision of the Supreme Court will provoke a wave of new convictions against the country in the European Court of Human Rights (ECtHR), the Court of Justice of the European Union (CJEU), and the United Nations Human Rights Committee. But even more importantly, this retrogression by the supreme judges leads to inhumane or degrading treatment and numerous personal tragedies for the people directly affected - a sad outcome for a country that is a member of the Council of Europe and the EU. The decision will not lead to the protection of any traditional values or legal or other security for children and families - as they are not and could not be threatened by the possibility of legal gender change.
↑[1] Examples are cases C-13/94, C-117/01 и C-423/04.