Advancing the Legal Recognition of Gender Identity in the European Union Through the Right to Free Movement of Persons

Avanzando en el reconocimiento de la identidad de género en la Unión Europea a través del derecho a la libre circulación de personas

DOI: https://doi.org/10.69592/3045-6673-N4-PRIMER-SEMESTRE-2026-ART-2

José María Lorenzo Villaverde

Distinguished Professor (accredited as Profesor Titular de Universidad)

Universidad de Santiago de Compostela

josemaria.lorenzo@usc.es

Recibido el 10 de junio de 2026; aceptado el 17 de julio de 2026.

Summary: I. INTRODUCTION. II.TERMINOLOGY. III.FROM MIRIN TO SHIPOVA. IV.SHIPOVA: THE LATEST STEP FORWARD. 1. The Case. 2. The Indissoluble Connection Between the CJEU and the ECtHR. 3. Person’s Status: Competence of the Member States Ma Non Troppo. A European Ordre Public. 4. Lived Gender and Self-Determination. 5. Walking the Tightrope of Free Movement of Persons in the European Union V. THE LIMITS OF SHIPOVA. 1. EU Citizenship and the Free Movement Approach: Third States and Third Country Nationals 2. Non-Binary Genders. VI. CONCLUSIONS.

Abstract: The Court of Justice of the European Union (CJEU) has progressively addressed the rights of trans persons in cross-border situations through its evolving jurisprudence. The Shipova ruling undoubtedly represents a landmark decision in the consolidation of these rights within the framework of the free movement of EU citizens, introducing the recognition of the “lived gender.” This article examines the principal aspects of the judgment and of the situation of trans persons and free movement in the EU, alongside critical unresolved issues. These include the decision’s implications for gender self-determination, the recognition of non-binary genders, and the need for a more precise legal definition of “lived gender” to clarify the legal effects of such recognition. Furthermore, the article critically assesses the inherent limitations of relying solely on the logic of free movement within the EU to address a matter that is intrinsically influenced by fundamental rights.

Keywords: gender identity, EU law, free movement in the EU, person’s status, ordre public, LGBTI rights, human rights, private international law.

Resumen: El Tribunal de Justicia de la Unión Europea (TJUE) ha abordado de manera progresiva los derechos de las personas trans en situaciones transfronterizas a través de su jurisprudencia. La sentencia Shipova representa, sin duda, un fallo emblemático en la consolidación de estos derechos en el marco de la libre circulación de los ciudadanos de la Unión, introduciendo el reconocimiento del “género vivido”. Este artículo examina los aspectos fundamentales de dicha sentencia, así como la situación de las personas trans en el contexto de la libre circulación en la UE, junto con cuestiones relevantes que todavía quedan pendientes. Entre ellas destacan las repercusiones del fallo en materia de autodeterminación del género, el reconocimiento de los géneros no binarios y la necesidad de una definición más precisa del “género vivido” para aclarar los efectos jurídicos de dicho reconocimiento. Asimismo, el artículo evalúa críticamente las limitaciones inherentes de la lógica de la libre circulación en la UE para abordar una materia como el reconocimiento de los derechos de las personas trans, en el marco de los derechos fundamentales.

Palabras clave: identidad de género, Derecho de la UE, libre circulación en la UE, estatuto personal, orden público, derechos LGBTI, derechos humanos, Derecho internacional privado.

I. Introduction1/2

Mi Querida Señorita (My Dearest Señorita) is a 1972 Spanish film, masterfully directed by Jaime de Armiñán and featuring a brilliant performance by José Luis López Vázquez. Unsurprisingly, it was nominated for the Oscars for Best Foreign Language Film in 1973. The film tackled the realities of intersex and trans persons at a time (the 1970s) when Spain was still under Franco’s dictatorship, making it undoubtedly a groundbreaking and courageous work for its era. By highlighting the clichés of the period, the film exposes not only the legal but also the profound social repression of the time, as exemplified in the reproduced dialogue. Among other issues, several scenes depict the severe practical challenges associated with holding identity documents that do not reflect one’s lived gender. Consequently, it serves as an excellent historical document, capturing both the era and the manner in which these issues were addressed.

Gender identity is fundamental to individual well-being across all spheres,4 both social and legal. Now, more than fifty years after Mi Querida Señorita, gender identity continue to generate case law and spark sociopolitical debate. Indeed, a legal backlash is currently unfolding in several European countries, jeopardizing the advancements in LGBTI+ rights achieved over the past two decades. While Spain has made significant progress in advancing the rights of trans persons, particularly through legislation enacted since 2023, the same cannot be said for other EU Member States.

Through an analysis of CJEU’s judgment in Shipova, this article examines the recognition of gender identity in cross-border situations within the European Union. It identifies the milestones of this jurisprudence, as well as its current limitations and the relevant unresolved issues that remain.

II. Terminology

Before engaging in an analysis of the case law of the Court of Justice of the European Union (CJEU) on gender identity, including its judgment in Shipova, it is useful to briefly clarify some of the relevant concepts and terminology and explain how they will be used in this article. Establishing a consistent terminology in this field can be challenging, given the existence of diverse—and often competing—approaches,5 as well as the variety of definitions proposed in legislation and by legal scholars across different legal systems. For readers already familiar with the subject, some of the following discussion may appear repetitive. Nevertheless, a brief clarification of these terms remains useful for present purposes.

In law, there is a tendency to create “boxes” to categorize and systematize concepts, which is useful for the sake of clarity and legal certainty. Indeed, characterisation is one of the core tasks of private international law scholars. However, in the subject matter of this article, this task may not be straightforward, not only across jurisdictions —given divergences between legal systems—, but also over time, as legal concepts evolve.

Broadly speaking, sex refers to a biological category, whereas gender relates to a social construct.6 The Inter-American Court of Human Rights (IACtHR), in its Advisory Opinion OC-24/17,7 provides a glossary of terms related to sexual orientation and gender identity.8 It distinguishes between “sex” and “sex assigned at birth.” The latter goes beyond a strict biological and masculine/feminine binary and relates, inter alia, to intersex persons and to the perception others have of an individual’s biological characteristics at birth. The IACtHR notes that “most individuals are easily classified, but some do not fit within the female/male binary system.”9 Within this understanding of the social perception of sex, the notion itself has also been regarded as socially constructed.10 In this regard, Duffy sees both sex and gender as two parallel concepts.11 The combined notion of “sex/gender” has also been adopted in legal scholarship, legislation, and jurisprudence.12 The binary model refers to the conception that only two categories of sex and/or gender exist, namely male and female.

Gender identity is defined as “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth.”13 In this regard, two related notions can be identified: gender identity and sexual identity. The Spanish Act 4/2023 on the equality of trans persons,14 for example, uses the term “sexual identity” and defines it in terms similar to those found in the Yogyakarta Principles.15 Other legislative instruments have retained the term “gender identity,” which remains the more commonly used expression.16 Asúa González supports the use of “sexual identity” in the Spanish Act on the basis that, according to the author, “gender identity” is a concept shaped by stereotypes and socially constructed gender roles linked to the struggle for gender equality, and also because the legal category of sex in civil registries, understood as a mere reflection of biological sex, does no longer fully apply.17 In any case, the terms “gender identity” and “sexual identity” may generally be used interchangeably, and their boundaries have increasingly become blurred. The same can be said of the terms “transsexual” and “transgender.” In this regard, the term “trans persons” will be used in this article as the preferred expression.18 A trans person is someone whose gender identity does not correspond to the sex assigned at birth.

Non-binary individuals are those whose lived sex/gender does not align with the binary male/female model, which has traditionally been grounded in biological differences between men and women. Intersex persons, as well as trans persons whose identity does not correspond to male or female categories, challenge this biologically-based dichotomy.19 Intersex persons are those whose sex characteristics do not fit within the typical definitions of male or female.20 The realities of intersex and trans persons, and the challenges they may face, are therefore distinct, although they are interconnected in several respects. The European Court of Human Rights (ECtHR) has also used the term “intergender” to refer to individuals whose gender identity is non-binary.21

Once some key terminology has been briefly addressed, the following section will examine recent case law of the CJEU concerning the rights of trans persons.

III. From Mirin to Shipova

In the short period of two years, the Court of Justice of the European Union has delivered four landmark judgments concerning the rights of trans persons. These may be broadly grouped into two categories. On the one hand, Mousse22 and Deldits23 fall within the scope of the General Data Protection Regulation (GDPR).24 Consequently, their main focus is data protection and the right to rectification of data relating to gender identity. On the other hand, Mirin25 and Shipova26 address gender identity from the perspective of free movement of persons within the EU, the concept of personal status, and the fundamental right to respect for private and family life.

In Mousse, a French association lodged a complaint against SNCF Connect, the company operating the online sale of train tickets, on the grounds that it required customers to indicate their gender as either male or female by selecting “Monsieur” or “Madame” when purchasing a travel document. The association argued that the collection of such information was unnecessary, infringed the right to respect for private life, and could give rise to discrimination on the basis of gender identity.

The CJEU considered that information regarding a traveller’s gender identity is not essential for the performance of a travel contract,27 taking into account the principle of “data minimisation”.28 The Court stated that, where there is a risk to fundamental rights, a legitimate interest should not prevail.29 Ultimately, the CJEU left it to the referring court to assess whether there is a risk of discrimination, while emphasising that discrimination may arise not only on the basis of gender, but also on the basis of a change in gender identity.30

Deldits concerns a different issue, although it is still connected to the GDPR. In this case, an Iranian citizen was granted refugee status in Hungary on the basis that he was a trans person. Although he had been registered as female at birth, his gender identity was male. However, the Hungarian asylum register recorded his gender as female. He therefore requested that his recorded gender and first name be corrected pursuant to art.16 GDPR. The request was refused on the grounds that he had not undergone gender reassignment surgery.

The CJEU underlined that one of the objectives of the GDPR is to protect individuals’ right to privacy with regard to the processing of their personal data.31 In the present case, the Court considered that the obstacles faced by a trans person under national law and administrative practice—namely, the absence of a procedure for the legal recognition of gender identity—constituted a limitation of the right to rectification enshrined in the GDPR.32 The Court further noted that the ECtHR has repeatedly held that requiring gender reassignment surgery as a condition for the legal recognition of gender identity is contrary to the European Convention on Human Rights (ECHR or “the Convention”).33

Mirin concerns the rights of trans persons from the perspective of the freedom of movement within the EU. In this case, a Romanian citizen residing in the United Kingdom legally changed his name and gender from female—assigned at birth—to male under British law. He subsequently sought recognition of this change in Romania. However, the Romanian authorities refused recognition, requiring him to undergo a separate legal procedure in Romania in order to obtain recognition under national law.

The CJEU acknowledges that, while matters of personal status fall within the competence of the Member States, they must comply with EU law when exercising that competence.34 In its reasoning, the Court links the present case to its well-established case law on names.35 Thus, as in cases concerning names, a refusal to recognise a gender lawfully acquired in another Member State, coupled with a requirement to initiate proceedings in the Member State where recognition is sought, constitutes an obstacle to the exercise of the right to free movement.36

The Court also supports its conclusions by referring to the case law of the ECtHR concerning art. 8 of the ECHR and the rights of trans persons.37 In particular, it notes that the Court of Strasbourg had already found that Romania failed to provide a procedure for the change of sex/gender and name that complied with the Convention.38

The importance of the CJEU’s decision in Mirin is undeniable. Unlike the Opinion of Advocate General (AG) Richard de la Tour, which proposed limiting the scope of the judgment solely to the change of sex/gender in the birth certificate—that is, to the identification details of the person39—while leaving the legal effects on other civil status matters, such as marriage or parentage, to the Member States, the CJEU did not establish such a limitation in its judgment.40 In a rather general and broad manner, as in other judgments,41 the Court simply states that the failure to recognise the gender identity acquired in another Member State may cause serious inconvenience to the person at the “administrative, professional and private levels”.42

IV. Shipova: the latest step forward

1. The Case

Shipova is the CJEU’s most recent ruling on gender identity and freedom of movement within the EU, representing yet another step forward—an apparently subtle development which, it may already be suggested, is far more far-reaching than a superficial reading might indicate.

In this case, a Bulgarian national was registered as male in the Bulgarian civil registry, but has always identified as a woman and has lived accordingly. She was diagnosed with gender dysphoria by a psychologist in 2014. She moved to Italy, where she underwent hormone therapy and began a relationship with an Italian citizen. She requested that the relevant Bulgarian authorities change her name and gender in her birth certificate and other relevant documents, in accordance with her lived gender. The request was rejected on the ground that Bulgarian law does not provide for a change of legal sex/gender on psychological grounds or on the basis of self-determination, relying on a decision of the Bulgarian Constitutional Court, which held that sex/gender must be understood in its “biological dimension” under Bulgarian law.43

Shipova differs from Mirin on one key issue: the trans person did not undergo a procedure to change her legal sex/gender in the host Member State—Italy in this case. The Court held that the mismatch between the person’s lived gender and her legal identity creates inconveniences at the “administrative, professional and private levels”.44 The absence of a procedure to amend the gender data of a citizen who has exercised her right to free movement within the EU amounts, the Court concluded, to a violation of art. 7 of the Charter of Fundamental Rights of the EU (CFREU or “the Charter”) and to an obstacle to the right to move and reside freely within the EU.45

The following sections will explore various key issues arising from this judgment.

2. The Indissoluble Connection Between the CJEU and the ECtHR

As in other decisions such as Mirin, Wojewoda Mazowiecki, and Coman46, the CJEU incorporates the case law of the ECtHR to support its reasoning and conclusions.47 Indeed, art. 52(3) CFREU serves as a communicating vessel between the case law of the two courts.48

In this case, both the Court and the AG’s Opinion focus on art. 8 ECHR, the right to private life —art. 7 CFREU must be interpreted in line with art 8 ECHR49—as well as with the ECtHR’s case law on trans rights. In particular, two judgments are expressly discussed, P.H. v Bulgaria50 and Y.T. v Bulgaria51, in which the Court of Strasbourg held that Bulgarian law on the change of legal gender fails to provide a procedure for legal gender recognition that can be regarded as compatible with art. 8 ECHR. Additionally, the AG underlines that the ECtHR has already held that the recognition of gender identity cannot be made conditional on gender reassignment surgery.52

Shipova is a judgment on the free movement of persons but, above all, a decision on fundamental rights and on the interpretation of EU law in their light, particularly given the tenuous link between the case and EU free movement law, as will be discussed later in this paper.

In this regard, the CJEU exhibits a high degree of doctrinal synchronisation and alignment with the ECtHR, facilitated by art. 52(3) of the CFREU. It may be argued that the CJEU functions as a mechanism for giving effect to the ECtHR’s case law within the scope of EU law and, of particular relevance to the present analysis, in the context of the free movement of persons within the Union. To date, CJEU rulings such as Wojewoda Mazowiecki and Mirin have been effectively implemented,53 whereas others, such as Coman, have yet to achieve effective implementation.54

The ECtHR has already held that the protection of gender identity falls within the scope of art. 8 ECHR55 and that requirements such as sterilisation or gender reassignment surgery violate the Convention.56 States must “provide accessible, clear, and foreseeable procedures for legal gender recognition”.57 The margin of appreciation afforded to States is limited in a matter of such importance for an individual’s existence.58 Additionally, the ECtHR has noted an evolution in this area, referring to developments within the World Health Organization, which removed gender identity from the category of “mental and behavioural disorders” and replaced “transsexualism” with “gender incongruence”.59

The CJEU is not limited by the ECtHR’s jurisprudence, which sets a minimum standard; however, pursuant to art. 52(3) of the CFREU, EU law may afford more extensive protection. Consequently, the CJEU could go beyond the ECtHR with regard to the legal recognition of gender identity on the basis of self-identification or self-declaration, without requiring any psychiatric diagnosis, medical reports, or hormonal treatment, as well as with regard to the recognition of non-binary genders. To date, however, this has not occurred, as will be addressed later in this paper. In Deldits, the CJEU stated that a “medical certificate constitutes sufficient evidence” to proceed with the change of legal gender,60 implying that Member States may require such medical certificates or psychological reports.

Shipova continues the gradual consolidation of fundamental rights as a cornerstone of EU law and forms part of the broader mosaic of the CJEU’s evolving case law on LGBTI+ rights, a development that culminated, this year, in the landmark ruling in Commission v Hungary.61

3. Person’s Status: Competence of Member States Ma Non Troppo. A European Ordre Public

The CJEU states that matters of a person’s status—in this case, the law on the change of name and gender identity—fall within the competence of the Member States.62 However, it adds that Member States must comply with EU law when exercising their competences, in particular “the right conferred on all Union citizens to move and reside within the territory of the Member States”.63

This is a standard formula which, following Spieker, can be summarized as follows:

“Although EU law does not detract from the competence of the member states in matters of [X], member states must, when exercising that competence, comply with EU law and, in particular, with the provisions related to [Y]”64

This classical formula has been used in other CJEU judgments such as Coman,65 Mirin,66 or Wojewoda Mazowiecki.67 It reflects an interplay between the principle of hierarchy and the principle of division of competences. The Court has typically not considered itself constrained by competential boundaries when interpreting EU law.68 In Shipova, it addresses the role of national legislation, including national constitutions, and the interpretation given by constitutional courts. The CJEU’s answer leaves no room for doubt: no court of a Member State is bound by the interpretation of national legislation given by a constitutional court if it results in impeding the recording of a change of gender data in the civil status registers of that State.69 Consequently, such a national court would have to disregard decisions of higher national courts if their interpretation is incompatible with EU law.70

The CJEU simply reiterates the supremacy of EU law, in this case the right to free movement enshrined in art. 21(1) TFEU, together with art. 7 of the Charter.71 This is the only possible answer; otherwise, the effectiveness of EU law would be seriously compromised.72 Shipova continues the trend of narrowing the scope within which the exclusive competence of the Member States in matters relating to personal status may operate.

This narrowing of the scope of Member States’ competences indisputably affects the role of national ordre public. Wojewoda Mazowiecki addressed this issue specifically, emphasising the restrictive interpretation of the ordre public exception when a fundamental freedom, such as the right of EU citizens to move and reside freely within the Union, is at stake.73 Shipova does not address the matter expressly, but its conclusions undoubtedly affect the margin of manoeuvre available to Member States when relying on the ordre public exception. Therefore, a Member State could not invoke ordre public to refuse recognition of a change of gender identity in the case of a person who has exercised their right to free movement as an EU citizen. The Court rejects the argument that the religious values or moral principles prevailing in a Member State—which entail that sex/gender must be understood in its “biological sense”74—may constitute a ground capable of justifying a restriction on the right to free movement, as well as on the fundamental rights enshrined in the Charter, in particular art. 7, which guarantees the right to respect for private and family life.75

Is it possible to speak of a European ordre public? The Court has only rarely referred to a European (i.e. EU law) ordre public,76 and it has stated that defining the content of the internal ordre public of the Member States does not fall within its remit.77 However, it may be suggested that a European ordre public is, at the very least, being developed through the jurisprudence of the CJEU, insofar as that jurisprudence shapes domestic ordre public and delineates the boundaries within which Member States may invoke it.78 It may further be argued that the development of this European ordre public not only serves to delimit domestic public policy, but also contributes, in practice, to nurturing the content of public policy under Union law wherever Union law applies. That content is, in turn, naturally informed by the Charter and the fundamental rights enshrined therein.

As mentioned earlier, Mirin did not limit its conclusions to changes of sex/gender in birth certificates and identity documents. The same understanding is maintained in Shipova, which reiterates the serious inconvenience caused to the person at the “administrative, professional and private”79 levels without limiting the legal effects of such a change of sex/gender.

In sum, by narrowing the scope of the Member States’ competences in matters of personal status within a broad understanding of the right to free movement in the EU, Shipova has clear implications for both domestic substantive law and private international law. Indeed, the conclusions reached in Shipova point in this direction: Member States must provide a procedure for the amendment of legal gender and gender data which, inter alia, must not be conditional upon gender reassignment surgery, in line with the jurisprudence of the ECtHR discussed in the previous section.

The question is the extent of this impact—for example, with regard to gender self-determination—and what its limits are. These issues will be addressed in the following pages.

4. Lived Gender and Self-Determination

One of the main novelties of the Shipova case, inter alia, when compared to Mirin, is that the applicant had not acquired a legal change of gender identity in the host Member State.80 In fact, AG De La Tour refers to the need to remove a “new form of obstacle” to the right to free movement of a Union citizen, resulting from a combined interpretation of Article 21 TFEU and Articles 7 and 45(1) of the Charter.81 He further clarifies that this obstacle arises from the impossibility of recording the lived gender on birth certificates and identity documents.82 It is worth highlighting the word “new,” as it reinforces that this case differs from the circumstances in Mirin and other precedents, addressing an issue that has not been treated previously. This brings a fresh perspective to the right to freedom of movement for trans individuals in the EU.

At this point, it is necessary to clarify what is meant by “lived gender.” The expression may evoke what is known as a “real-life experience,” which operates as a prerequisite for legal gender recognition in some jurisdictions. This refers to a specific period, or a sort of “trial,” during which the individual must experience “living” in their desired gender.83 As Scherpe argues, this requirement is problematic because it reinforces prejudices and stereotypes regarding what constitutes a “real experience” of being male or female, thereby trapping individuals within gender-biased expectations.84 In this regard, this paper also advocates that such conditions should be abolished in jurisdictions that still maintain them.85

The notion of “lived gender” used by the CJEU, however, is distinct. The controversial expression “real-life experience” is not employed; rather, the word “lived” appears to place the focus on how the individual internally experiences their gender. Nonetheless, the Court does not provide a formal definition. When discussing the case, both the AG and the CJEU note that the applicant possessed psychological reports concerning gender dysphoria and had undergone hormone therapy in Italy,86 alongside having an appearance that might raise doubts regarding the authenticity of her gender data and identity documents.87 In any event, the concept is applied strictly within the scope of the case—namely, freedom of movement within the EU and the legal and practical obstacles this poses for individuals holding documents that do not align with their lived gender.

Does this notion of “lived gender” imply that, at least within the scope of EU law and the principle of freedom of movement, the CJEU is moving toward requiring Member States to establish a process for legal gender change based on individual self-determination?

The world’s pioneering law allowing for a change of legal gender based on self-determination of the individual was the Argentine Gender Identity Act No. 26,743 of 2012.88 Thus, for the first time, a jurisdiction permitted individuals to change their name and sex/gender marker without requiring a medical diagnosis, judicial approval, or conditioning the process on gender reassignment surgery. Within the European Union, at least concerning adults and subject to varying administrative criteria, nine Member States have enacted laws based on self-determination, including Malta,89 Denmark,90 Ireland,91 and Spain.92 Nevertheless, this still does not represent the majority of jurisdictions within the EU.

Admittedly, the facts of Shipova did not require the CJEU to address the issue of self-determination in the absence of hormonal treatment, given that the applicant possessed psychological and medical certificates and had already initiated hormonal treatment in the host country.93 Similarly, the Mirin case did not prompt the Court to reflect on this specific issue, as it concerned merely the cross-border recognition of a legal gender change validly acquired in another Member State during the individual’s residence there, within the framework of EU free movement rights. Future judgments will be necessary to provide the Court with the opportunity to delineate and detail the concept of “lived gender,” particularly in cases where the circumstances do not indicate that the individual exercising their right to free movement within the EU has undergone hormonal treatment or obtained medical or psychological reports.

Consequently, the CJEU does not appear to go beyond the standards currently established by the ECtHR. Specifically, it does not expressly exclude the possibility that Member States may require, for instance, medical or psychological reports as a prerequisite for a legal change of gender. It remains to be seen how the interpretation of the notion of “lived gender” will evolve. Nevertheless, there is clear evidence of a progressive shift toward strengthening the rights of trans persons, moving in a direction that demands fewer requirements for obtaining legal gender recognition, as already reflected in the ECtHR’s reasoning in T.H. v. the Czech Republic.94

5. Walking the Tightrope of Free Movement of Persons in the European Union

The novel question brought before the CJEU in Shipova has significant implications for the interpretation of the right to freedom of movement in the EU. Indeed, the Bulgarian citizen exercised her right to free movement by establishing genuine residence in Italy. This scenario differs not only from Mirin, as previously noted, but also from other judgments concerning the free movement of same-sex spouses, such as Coman or Wojewoda Mazowiecki, as well as cases pertaining to surnames, such as García Avello95 or Grunkin and Paul96. In all those cases, the individuals involved had already acquired a change in their gender, name, or marital status in a Member State different from their Member State of origin.

At this juncture, it is pertinent to ask what distinguishes Shipova from the situation of a trans person who has not yet left Bulgaria. Does the discrepancy between a person’s lived gender and the gender recorded on identity documents issued by national authorities not also constitute an obstacle to free movement, thereby deterring trans persons from exercising their right to move freely—for example, by relocating to another Member State—due to the fear of the numerous bureaucratic, legal, and personal hurdles such an inconsistency would entail? The crucial factor in Shipova is that the individual has actually exercised her right to free movement; it is at this point that the relevant protections and safeguards are triggered, thereby ensuring the effective exercise of this right.

Therefore, the notable innovation lies in the fact that the CJEU does not require the individual to have acquired or changed their legal status in the host Member State, or in any other state whatsoever. This undoubtedly constitutes a milestone in the evolution of free movement law and, more broadly, for the rights of LGBTI+ individuals. In my view, the link to EU freedom of movement is not as tenuous as it might appear at first sight: the citizen established genuine residence in another Member State, where she is in a relationship with another person. It therefore transcends a purely internal situation. Furthermore, Shipova underscores the growing centrality of fundamental rights as a cornerstone of EU law, as enshrined in the Charter of Fundamental Rights of the European Union. Through free movement and Union citizenship, matters of personal status are increasingly recognized as core issues within EU law.

It may be argued that EU competence in free movement law and Member States’ competence regarding personal identity and civil status function akin to “communicating vessels”: the broader the scope of the former, the narrower the margin of the latter.97 In practice, this means that EU law is decisively influencing national substantive civil and private international law. In any event, by drawing on the case law of the ECtHR—and without exceeding the level of protection established by the Court of Strasbourg’s jurisprudence—the CJEU is not imposing any additional obligations beyond those that Member States already bear as parties to the European Convention on Human Rights.

V. The limits of Shipova

1. EU Citizenship and the Free Movement Approach: Third States and Third Country Nationals

In Mirin, the Court was confronted with the question of what occurs when a legal change of gender identity is acquired in a third country; however, it approached the issue effectively sidestepping the substantive question. According to the facts of the case, a Romanian national who had been residing in the United Kingdom since 2008 changed his name prior to the United Kingdom’s withdrawal from the European Union and subsequently changed his legal gender from female to male in that country during the transition period in 2020. In 2021, by which time the United Kingdom was no longer a Member State, the applicant requested the rectification of his Romanian birth certificate to reflect this change of gender identity. The Romanian Government argued that the request for a preliminary ruling was inadmissible on this basis. The CJEU held that, because the changes to his name and gender identity occurred while the citizen was exercising his right to freedom of movement within the EU and while the United Kingdom was still a Member State, he could rely on the rights and protections conferred by EU law.98

Consequently, the CJEU did not need to address the situation of a gender identity change acquired in a third country, as it concluded that, for the purposes of the case, the United Kingdom was to be regarded as a Member State at the relevant time. The decisive factor was the timing of the legal gender change in the host State.

However, in spite of the advancement of the rights of trans persons Shipova and Mirin entail, two important limitations can be identified. First, these cases concern cross-border situations arising from the exercise of free movement within the EU. Therefore, in principle, this case law does not cover EU citizens who move to third countries—where they might, for example, change their gender identity—nor does it cover citizens who have never left their Member State of origin. Second, because the right to freedom of movement is intrinsically linked to Union citizenship, third-country nationals fall outside its scope.

The rationale underpinning free movement jurisprudence, however, proves inadequate when applied to other legal instruments, such as the EU’s private international law regulations.99 While facilitating the free movement of persons undeniably supports the broader objective of consolidating the EU’s area of freedom, security, and justice,100 these PIL regulations do not operate on the same premise. Their scope inherently extends beyond EU nationals. Moreover, their application requires that any law designated by the relevant conflict-of-laws rules be given effect, irrespective of whether it originates from a Member State or a third country.

For example, if a Romanian national—as in Mirin—moved to Argentina instead of the United Kingdom, changed their gender identity there, and then returned to Romania, they would not benefit from the right to free movement, as Argentina is not a Member State. Similarly, a third-country national who changes their legal gender—whether in their country of citizenship or in another EU Member State—would also fall outside the scope of free movement law, as they do not possess EU citizenship.

From a strict human rights perspective, drawing a distinction between EU citizens and non-EU citizens, or between EU nationals who establish residence in a Member State versus those who reside in a third country, appears questionable. In any event, it must be emphasized that the ECtHR, in its interpretation of the ECHR, is not constrained by the aforementioned free movement rationale. Furthermore, it should be recalled that the ECHR—and the jurisprudence interpreting it—influences the interpretation of EU private international law instruments through the CFREU.101

2. Non-binary genders

Society has traditionally been organized around a gender binary that categorizes individuals as either male or female, linking these identities to certain biological characteristics. Historically, this framework has assigned distinct roles to men and women in both the public and private spheres.

Both trans and intersex individuals challenge this traditional gender binary.102 Indeed, the significance of non-binary gender frameworks extends beyond intersex persons to encompass trans persons who do not identify within the traditional male or female categories.103 While the lived realities, difficulties, and specific needs of intersex and trans persons differ and must not be conflated104—a distinction that requires tailored legal responses—it remains clear they both face interconnected hurdles in having their rights recognized and protected.105

I consciously use the term “non-binary genders” in the plural, rather than “third gender” or “X gender.” Non-binary is not a third gender. As aptly pointed out by Ashley, the antonym of “non-binary” is “binary”; it is not “man” or “woman.”106 Thus, the notion of “non-binary” serves as an umbrella term encompassing a diverse range of gender identities.107 Consequently, introducing an “X” or “third gender” marker may fall into the same trap, ultimately acting as a constraint on the diverse identities of non-binary individuals.108 Some scholars have advocated for the complete removal of sex or gender markers.109 However, the legal recognition of non-binary genders need not entail the elimination of the male and female categories—identities with which not only cisgender individuals, but also many trans people, identify.110 Nevertheless, this paper supports gender identity legislation that allows for self-determination and adequately accommodates non-binary genders, as such an approach best complies with fundamental rights, including the right to private life and the free development of one’s personality. A trend toward the increasing recognition of non-binary genders is emerging across European jurisdictions, and it is expected that the number of countries legislating on this matter will continue to grow.

Several European jurisdictions have introduced the possibility of a legal gender other than male or female into their national laws, albeit with diverse requirements and terminology, such as Germany111 and Malta.112 Other jurisdictions provide for non-binary gender markers in a more limited capacity—for example, on specific documents like passports—without formally recognizing a third gender category distinct from male and female.113 Spain, for instance, has maintained the binary model in its Act 4/2023.114

What are the implications of Shipova concerning the possibility of recognizing non-binary genders in the EU, and what is the scope of the notion of “lived gender”? In this case, the Court did not have to address the issue directly. However, the lack of a specific definition of “lived gender” in the Court’s reasoning reasonably raises the question of whether it entails an obligation for Member States to establish a procedure for recognizing a non-binary gender in cases where a person’s lived gender falls outside the male/female binary.

As previously mentioned, the Court incorporates the case law of the ECtHR into its reasoning, aligning itself with its jurisprudence. At present, the ECtHR has had the opportunity to address the issue of non-binary gender in Y. v. France.115 The Court concluded that it was within France’s margin of appreciation to limit gender categories to male and female.116 In this regard, the Court of Strasbourg noted that the vast majority of European States provide only male or female sex/gender markers, and it gave weight to the argument that this limitation was justified on grounds of public interest and the need to ensure consistency in civil status documents.117 Consequently, there was no obligation to introduce a non-binary legal gender in the States’ domestic legal orders. It must be noted, however, that Y. v. France concerned a purely internal situation, not a cross-border scenario involving the legal recognition of a non-binary gender.

In my view, based on the ruling in Shipova, it is difficult to argue that it imposes an obligation on EU Member States to introduce a non-binary gender category in their domestic law. First, the case did not specifically examine this issue. Second, at least at present, the ECtHR jurisprudence, with which the CJEU aligns, has not imposed such an obligation. Third, the CJEU did not provide a definition of the concept of “lived gender” or clarify whether it must encompass non-binary genders even if they are not foreseen in the domestic legal system. However, approaching the issue from the perspective of Mirin might lead to a different conclusion. In Mirin, there was a legal change of gender identity in another Member State. Let us imagine that the Romanian national, instead of residing in the United Kingdom, had taken up residence in Germany and acquired the legal gender “divers” pursuant to German law. If that legally acquired gender were not recognized in Romania, it would result in a situation of a limping legal status, similar to the situation in Mirin where the citizen held contradictory documents issued by two Member States. Why should Romania have an obligation, under EU freedom of movement law, to recognize a legal gender “male” acquired in the United Kingdom, but not a legal gender “divers” obtained in Germany? Would such non-recognition not also constitute an obstacle to freedom of movement within the EU?

In Spain, the High Court of Justice of Andalusia, in a 2023 judgment,118 ruled that a German national who was registered as “divers” under German law should be registered in the Spanish Central Registry for Foreign Nationals with an “unspecified gender” rather than as male.

In its reasoning, the Andalusian Court emphasized that the data recorded by the Spanish administration must correspond to the “real” data concerning the individual’s gender identity.119 It further noted that a discrepancy between the data from the country of origin and that available to the Spanish authorities would constitute a “distorting” factor.120 The Court clarified that this is not a matter of recording, for the purposes of the Spanish Civil Registry, a sex/gender designation that is not permitted under the domestic legislation governing it.121 Finally, it stated that, in the context of private international law, this entails the application of the person’s national law.122

Even if one adopts an interpretation of current CJEU case law that requires the recognition of a gender identity lawfully acquired in another Member State, including non-binary gender identities, many practical questions would remain open.

In the aforementioned Spanish case, if the non-binary German national wished to marry a Spanish national in Spain, this would not pose a problem, as Spain has a gender-neutral marriage law.123 Greater challenges would arise if the recognition of a non-binary gender status were to take place in a country where only different-sex marriage (i.e., between a man and a woman) is permitted. Consider, for instance, the case of the aforementioned non-binary German national who establishes residence in Bulgaria and seeks to marry there. As noted above, in Mirin, the CJEU—unlike the AG in his Opinion—did not limit the effects of recognizing a gender identity acquired in another Member State to the mere amendment of the individual’s civil status registration. Under this reasoning, the recognition of a gender identity validly acquired in one Member State should, in principle, produce legal effects in other areas of law, potentially including family and succession law.

If the cross-border recognition of gender identity within the European Union is required by EU law in light of the right to free movement and the fundamental rights guaranteed by the Charter, the Member State in which recognition is sought should provide legal solutions capable of accommodating and giving practical effect to that recognition. This would include situations involving the exercise of the right to marry—even if that means reclassifying the non-binary person as either male or female solely for the purpose of entering into marriage, where those are the only categories contemplated by the relevant substantive family law. Otherwise, the individual concerned, whose legal gender is non-binary, could be effectively deprived of any meaningful possibility of exercising the right to marry in the host State. Such an outcome would raise serious questions under the European human rights framework, particularly in light of the right to private life and the right to marry under Articles 8 and 12 of the ECHR, and Articles 7 and 9 of the Charter, respectively.

At the national level, even in jurisdictions that have enacted specific legislation for intersex and non-binary persons, there is generally a lack of private international law provisions addressing gender identity.124 Given this absence, and regarding the determination of applicable law, it may seem possible to rely on the law of personal status to govern a person’s legal gender.125 However, following Dutta and Pintens, such a solution—which relies on a ‘one-size-fits-all’ approach—is not entirely convincing, making a specific conflict-of-laws rule for gender identity matters highly desirable.126 These authors point out that relying on general personal status rules often leads to the application of the law of nationality, and such differentiation between nationals and foreigners may jeopardize the objective of protecting individuals and their human rights that such laws aim to safeguard.127 Furthermore, they propose the automatic recognition of a gender status once it has been registered in a foreign civil registry.128

In any event, even if one were to interpret the CJEU’s reasoning in Mirin as requiring the recognition of a non-binary gender status, such an interpretation would still be subject to the same limitations discussed above regarding the EU free movement approach; namely, it applies only to EU citizens exercising their right to free movement. For example, if an Argentine citizen, legally resident in Germany, changed their legal gender to “divers” in Germany pursuant to the conditions and requirements of German law, and subsequently moved to another EU country, this scenario would fall outside the scope of the right to free movement, as the individual is not an EU national.

Once again, from a human rights perspective that upholds the right to private life and the free development of one’s personality, such differentiation between own nationals, other EU citizens, and non-EU nationals regarding the recognition of gender identity remains highly questionable.

VI. Conclusions

The decision in Shipova undoubtedly represents a major milestone for the rights of trans and, more broadly, LGBTI+ persons within the European Union, following the path established by landmark decisions such as Coman, Mirin, and Wojewoda Mazowiecki. Furthermore, it provides an interpretation of the principle of free movement of persons within the EU that decisively expands its scope in light of fundamental rights, which are being consolidated as the cornerstone of EU law application. In this context, judgments like Shipova exert a decisive influence on areas of Member State competence, which, as the Court repeatedly emphasizes, must be exercised in strict compliance with EU law.

Nevertheless, several issues remain unresolved. On the one hand, the logic of free movement excludes EU citizens who do not exercise this right (for instance, those who have never left their home countries or who establish residence in third countries), as well as third-country nationals. Additionally, while the CJEU has introduced the concept of “lived gender”—offering a fresh perspective on transgender rights in the EU—it has not yet provided an in-depth definition. This lack of clarity is highly relevant when determining the scope of this concept regarding a change of gender based on self-determination, as well as the recognition of non-binary genders in cross-border situations within the EU. On this point, this article has argued that, based on current case law, a Member State should recognize a non-binary legal change of gender identity validly acquired in another Member State. However, it would be necessary that the CJEU further refines the scope of this concept in future rulings.

Juan, the protagonist of Mi Querida Señorita, did not try to move from Spain – at the time, in the 1970s, Spain was not even a democracy and far from becoming an EU member State. If Juan were to time-travel from 1970s to 2026, he would likely be both surprised and impressed by the legal strides made in recognizing LGBTI+ rights. However, if he were to exercise his right to free movement as an EU citizen and cross national borders—in a contemporary context where European mobility is far more common than it was in the 1970s—he would experience firsthand that unresolved issues still generate administrative, professional, and personal obstacles. It is to be expected that the Court will need to address these matters in future cases, and it is highly desirable that progress continues in consolidating the rights of persons in cross-border contexts, guided by the fundamental rights that must inform the domestic legislation of all Member States.

  1. 1 This article aligns with Sustainable Development Goals (SDGs) 3, “Ensure healthy lives and promote well-being for all at all ages”; 5, “Achieve gender equality and empower all women and girls”; 10, “Reduce inequality within and among countries”; and 16, “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all, and build effective, accountable and inclusive institutions at all levels.” Translations from other languages into English in this paper are by the author.

  2. 2 This work is written under the framework of the Ministry of Science and Innovation project “Organization and execution of mortis causa wills. Special consideration of the personal, family, and patrimonial circumstances of the deceased” (PID2024-160940NB-I00, 2025–2029), funded by MICIU/AEI /10.13039/501100011033 / ERDF, EU.

  3. 3 De Armiñán, Jaime (dir.). Mi querida señorita [film]. Screenplay by Jaime de Armiñán and José Luis Borau. Spain: Impala / InCine S.A. / El Imán, 1972. English translation of the dialogue by the author:

    - “You see, I’d never been interested in men. I felt a sort of fear or aversion towards them. I thought it was envy because all my friends were getting married while I remained single. Do you hear me?

    - Yes, yes, of course.

    - But now a man has asked me to marry him.

    - Don Santiago?

    - How do you know?

    - Because he told me. I think it’s a very good thing. It would be good for you, Adela. You would fulfil yourself physically and spiritually.

    - I don’t know. The thing is, there’s a problem, Father. I shave.

    - What?

    - I shave. I started when I was seventeen and I’ve never been able to stop. I don’t know whether I’m a normal woman. Women… I don’t know how to say it to you. I’m ashamed.

    - You’ve no reason to be ashamed.

    - But you understand me, don’t you?

    - Yes, yes.

    - And is it a sin?

    - Have you ever had any physical contact with a woman?

    - No. No, no. God forbid. God forbid…

    - And with a man?

    - No, neither.

    - How old are you?

    - Forty-three.

    - I t would be better if you consulted a doctor. I’ll give you the card of a colleague of mine in Zaragoza. And don’t worry too much.

    - Thank you, Father. Now I’d like to make my confession”

  4. 4 Ashley, F., “‘X’ Why? Gender Markers and Non-binary Transgender People”, in Jaramillo, I. C. and Carlson, Laura (Eds.), Trans Rights and Wrongs, A Comparative Study of Legal Reform Concerning Trans Persons, Springer, Cham, Switzerland, 2021, p. 37.

  5. 5 Scherpe, J. M., “Introduction”, in Scherpe, J. M. (Ed.), The Legal Status of Transsexual and Transgender Persons, Intersentia, Cambridge, UK, 2015, p. 2.

  6. 6 Schuster, A., “Gender and Beyond: Disaggregating Legal Categories” in Schuster, A. (Ed.), Equality and Justice: Sexual Orientation and Gender Identity in the XXI Century, Editrice Universitaria Udinese Srl, Udine, 2011, pp. 31 et seq.

  7. 7 Inter-American Court of Human Rights. Gender Identity, and Equality and Non-Discrimination of Same-Sex Couples: State Obligations Concerning Change of Name, Gender Identity, and Rights Derived from a Relationship Between Same-Sex Couples. Advisory Opinion OC-24/17, Series A No. 24, 24th November 2017, paras. 30–32. https://www.corteidh.or.cr/docs/opiniones/seriea_24_ing.pdf. (retrieved: May 2026).

  8. 8 The glossary is further discussed in light of Argentine gender identity law by Marisa Herrera in Herrera, M., Manual de Derecho de las familias, Abeledo Perrot, Buenos Aires, 2023, pp. 41 et seq.

  9. 9 IACtHR Advisory Opinion OC-24/17, para. 32.

  10. 10 Duffy, S. (2024) “Gender Identity: A Comparative European Perspective”, in Duden, K. and Wiedemann, D. (Eds.), Changing Families, Changing Family Law in Europe, Intersentia, Cambridge, UK, 2024, p.140.

  11. 11 Ibid., pp. 140-141.

  12. 12 Thus, the European Court of Human Rights (ECtHR) has used the expression “sex/gender marker” in its decisions. See, e.g., the ECtHR judgments: T.H. v. The Czech Republic, Application no. 33037/22, Judgment of 12th June 2025, ECLI:CE:ECHR:2025:0612JUD003303722, paras. 33, 38, 47, 49; E.G. and Others v. Hungary, Application no. 12918/19, Judgment of 21st November 2024, ECLI:CE:ECHR:2024:1121JUD001291819, paras. 39, 40, 42; R.K. v. Hungary, Application no. 54006/20, Judgment of 22nd June 2023, ECLI:CE:ECHR:2023:0622JUD005400620, paras. 43, 55, 57, 58, 60, 64, 69, 71, 74; A.D. and Others v. Georgia, Applications nos. 57864/17, 79087/17 and 55353/19, Judgment of 1st December 2022, ECLI:CE:ECHR:2022:1201JUD005786417, paras. 45, 48, 55, 56, 59-61, 63, 67, 69, 73, 74; X v. The Former Yuguslav Republic of Macedonia, Application no. 29683/16, Judgment of 17th January 2019, ECLI:CE:ECHR:2019:0117JUD002968316, paras. 56, 57, 65, 67-69. See further on the ECtHR’s use of this notion, Chollet, S. (2025) “‘Sex/Gender’ and the Mirage of Non-Binary Identities in the ECtHR’s Case Law”, GenIUS- Rivista di studi giuridici sull’orientamento sessuale e l’identità di genere, 2025.

  13. 13 The Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, March 2007, Introduction, footnote (2), https://yogyakartaprinciples.org/introduction/ (retrieved May 2026).

  14. 14 Act 4/2023, of 28th February 2023, on the real and effective equality of trans people and the guarantee of the rights of LGTBI people.

  15. 15 As stated in its preamble: “Sexual identity: the internal and individual experience of one’s sex as each person feels and self-defines it, which may or may not correspond to the sex assigned at birth.” The term “sexual identity” is used throughout the Act, although “gender identity” is used again in Article 35, concerning adoption and foster care.

  16. 16 E.g., the Argentine Act 26743 of 9th May 2012 on Gender Identity or the Maltese Act of Act No. XI of 14th April 2015 on Gender Identity, Gender Expression and Sex Characteristics.

  17. 17 Asúa González, C. I., “La constancia registral del sexo (a propósito de la ley trans)”, Derecho Privado y Constitución, n. 46, 2025, pp. 21-22.

  18. 18 In this vein, see Siverio Luis, S., Los fundamentos constitucionales de la autodeterminación del género de las personas trans, Atelier, Barcelona, 2025, p. 28.

  19. 19 Dunne, P., “Towards Trans and Intersex Equality: Conflict or Complementarity?” in Scherpe, J. M.; Dutta, A. and Helms, T. (eds.), The Legal Status of Intersex Persons, Intersentia, Cambridge, UK, 2018, p. 235.

  20. 20 See the definition provided by the IACtHR in the above-mentioned Advisory Opinion, para. 32.

  21. 21 ECtHR judgment T.H. v. The Czech Republic, paras. 6, 13.

  22. 22 Case C-394/23, Mousse v Commission nationale de l’informatique et des libertés (CNIL) and SNCF Connect, Judgment of the Court (First Chamber), 9th January 2025. ECLI:EU:C:2025:2

  23. 23 Case C-247/23, Országos Idegenrendészeti Főigazgatóság (Deldits), Judgment of the Court (First Chamber), 13th March 2025, ECLI:EU:C:2025:172.

  24. 24 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016 (General Data Protection Regulation) (GDPR).

  25. 25 Case C-4/23, Mirin, Judgment of the Court (Grand Chamber), 4th October 2024, ECLI:EU:C:2024:845.

  26. 26 Case C-43/24, Shipova, Judgment of the Court (Second Chamber), 12th March 2026, ECLI:EU:C:2026:183.

  27. 27 Case C-394/23, Mousse, para.39.

  28. 28 Ibid., para. 49.

  29. 29 Ibid., para. 60.

  30. 30 Ibid., para. 62.

  31. 31 Case C-247/23, Deldits, para. 27.

  32. 32 Ibid., para. 37.

  33. 33 Ibid., para. 48.

  34. 34 Case C-4/23, Mirin, para. 53.

  35. 35 Ibid., paras 54 and 55.

  36. 36 Ibid., para. 57.

  37. 37 On the basis of art. 52(3) of the Charter of Fundamental Rights of the European Union. See ibid., paras. 63-67.

  38. 38 Referring to the ECtHR judgment X and Y. v. Romania, Applications nos. 2145/16 and 20607/16, of 19th January 2021, ECLI:CE:ECHR:2021:0119JUD000214516. See Mirin, paras 65-67.

  39. 39 See AG Opinion Richard de la Tour in Mirin, delivered on 7th May 2024, ECLI:EU:C:2024:385, paras. 93. 101. See, critical with the perspective of the AG Opinion, Durán Ayago, A. “De la identidad de género a la libre circulación en la Unión Europea. Un paso más en la buena dirección al albur de la STJUE de 4 de octubre de 2024, C-4/23, Mirin”, Cuadernos de Derecho Transnacional, Vol.17, núm. 1, 2025, pp. 1266-1267.

  40. 40 In Mirin, para. 57, the CJEU states that “the refusal by the competent civil status authorities of a Member State to recognise and enter in the civil registers, and in particular in the birth certificate of a national of that Member State, (…) is liable to restrict the exercise of the right to move and reside freely within the territory of the Member States”. It thus states in particular, but not only, when referring to the change in the birth certificate.

  41. 41 See for example Case C-713/23, Cupriak-Trojan and Trojan v Wojewoda Mazowiecki, Judgment of the Court (Grand Chamber) of 25th November 2025, ECLI:EU:C:2025:917, para. 51. See further on the decisión Wojewoda Mazowiecki, Lorenzo Villaverde, J.M., “El reconocimiento del matrimonio entre personas del mismo sexo en la Unión Europea y la sentencia del TJUE en el asunto Wojewoda Mazowiecki – un punto y seguido”, La Ley Unión Europea, núm.144, 2026, pp. 5 et seq.

  42. 42 Case C-4/23, Mirin, para. 55.

  43. 43 C-43/24, Shipova, para. 21.

  44. 44 Ibid., para. 38, using the same wording as in Mirin and Wojewoda Mazowiecki.

  45. 45 Ibid., paras. 55 and 56.

  46. 46 Case C-673/16, Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne, Judgment of the Court (Grand Chamber) of 5th June 2018, ECLI:EU:C:2018:385.

  47. 47 C-43/24, Shipova, paras.49 to 52.

  48. 48 Art 52(3) CFREU lays down: “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”

  49. 49 AG opinion in Shipova, para. 90.

  50. 50 ECtHR judgment, Application no. 46509/20, P.H. v. Bulgaria, 27th September 2022,
    ECLI:CE:ECHR:2022:0927JUD004650920.

  51. 51 ECtHR judgment, Application no. 41701/16, Y.T. v. Bulgaria, 9th July 2020,
    ECLI:CE:ECHR:2020:0709JUD004170116.

  52. 52 AG opinion in Shipova, para. 99.

  53. 53 Concerning Mirin, see the press release by the Romanian LGBTQIA+ association Accept: https://acceptromania.ro/en/stiri/definitive-victory-in-arians-case-romanian-justice-confirms-transgender-peoples-right-to-align-their-identity-documents-following-cjeu-ruling/ (retrieved: May 2026). Mazowiecki is also being implemented by the Polish authorities, https://www.euronews.com/my-europe/2026/05/14/poland-makes-history-with-first-same-sex-marriage-registration-following-eu-court-ruling (retrieved: May 2026).

  54. 54 The parties have lodged an application before the ECtHR, which is currently pending, application no. 2663/21 Relu-Adrian Coman and Others v. Romania, lodged on 23rd December 2020, https://hudoc.echr.coe.int/eng?i=001-208508 (retrieved: May 2026). Swennen, F., “Recognition and protection of Queer Families in European Family Law”, International Journal of Law, Policy and The Family, Vol. 39, issue 1, 2025, p. 16.

  55. 55 ECtHR judgment, Application no. 28957/95, Christine Goodwin v. The United Kingdom, 11th July 2002, ECLI:CE:ECHR:2002:0711JUD002895795, paras. 90-91.

  56. 56 Applications nos. 79885/12, 52471/13 and 52596/13, A.P. Garçon and Nicot v. France, 6th April 2017, ECLI:CE:ECHR:2017:0406JUD007988512, paras. 92-94.

  57. 57 Application no. 2145/16, X and Y v. Romania, 19th January 2021, ECLI:CE:ECHR:2021:0119JUD000214516, para. 104.

  58. 58 T.H. v. The Czech Republic, paras. 52-53.

  59. 59 T.H. v. The Czech Republic, para. 50. See International Classification of Diseases, 11th Edition of the World Trade Organization, codes HA60 (adolescents/adults) and HA61 (childhood), https://icd.who.int/en/ (retrieved: May 2026).

  60. 60 Case C-247/23, Deldits, para. 49.

  61. 61 C-769/22, European Commission v. Hungary, of 21st April 2026, ECLI:EU:C:2026:326.

  62. 62 Case C-43/24, Shipova, para. 37.

  63. 63 Ibid.

  64. 64 Spieker, L. D., “Competence Confusions: Why the Vertical Division of Competences Cannot Constrain the Court’s Interpretation of EU Law”, European Constitutional Law Review, vol. 21, issue 4, 2025, p. 30.

  65. 65 Case C-673/16, Coman, 37 and 38.

  66. 66 Case C-4/23, Mirin, para. 53.

  67. 67 Case c-713/23, Wojewoda Mazowiecki, paras. 47 and 48.

  68. 68 Spieker, L. D., 2025, op. cit. pp. 32-33, 39.

  69. 69 Case c-43/24, Shipova, paras. 57 to 64.

  70. 70 Ibid., para. 62.

  71. 71 Ibid., para. 63.

  72. 72 As I argued in relation to Coman, Lorenzo Villaverde, J.M. “Same-Sex Couples and EU Private International Law after Coman”, in Duden, K. and Wiedemann, D., Changing Families, Changing Family Law in Europe, Intersentia, Antwerp, 2024, pp. 164-165.

  73. 73 Case C-713/23, Wojewoda Mazowiecki, para. 60.

  74. 74 Case C-43/24, Shipova, para. 25.

  75. 75 Ibid., paras. 46-48.

  76. 76 It has mentioned it expressly in a recent judgment, C-600/23, Royal Football Club Seraing, 1st August 2025, ECLI: EU: C: 2025: 617, paras 85, 95, 100, among others.

  77. 77 E.g. in C-713/23, Wojewoda Mazowiecki, para. 60. See Lorenzo Villaverde, 2026, op. cit. p. 9. Wurmnest argued that it is probably not possible to define ordre public alone on the basis of European values, Wurmnest, W., “Public Policy in European Private International Law”, in Meyer, O. (Ed.) Public Policy and Private International Law, Elgar Publishing, Cheltenham, UK, 2022, p. 36.

  78. 78 See Lorenzo Villaverde, J.M. 2026, op. cit., p. 9.

  79. 79 Case C-43/24, Shipova, para. 38.

  80. 80 The AG stated in its Opinion in Shipova, para. 60: “[T]he novel question referred to the Court is how to ensure the effectiveness of the exercise of that freedom where the gender identity lived by a Union citizen differs from the gender identity resulting from the indication of that citizen’s gender in his or her birth certificate”.

  81. 81 AG Opinion in Shipova, para. 76.

  82. 82 Ibid.

  83. 83 Scherpe, J. M., “Comparative Analysis and Recommendations”, in Scherpe, J. M. (Ed.), The Legal Status of Transsexual and Transgender Persons, Intersentia, Cambridge, UK, 2015, pp. 655-656. In Spanish the expression used is the so-called “test de vida real”, which, as Herrera defines, corresponds to the requirement which entails that the person lives in their familial or social environment in their new gender for a certain period of time – usually more than two years, Herrera, M., 2023, op. cit. p. 1131.

  84. 84 Scherpe, J. M., “Comparative Analysis and Recommendations”, 2015, op. cit. p. 656.

  85. 85 As Scherpe rightly points out, this requirement even hardly works as a safeguard against potential abuse of law, and on the contrary, becomes an obstacle for gender recognition of trans persons, ibid. p. 657.

  86. 86 Case C-43/24, Shipova, para. 15.

  87. 87 Ibid., para. 43: “The discrepancy between a person’s appearance and the gender data which appear on his or her identity card or passport is thus such as to oblige that person to dispel doubts as to his or her gender identity and the authenticity of the identity document submitted or the veracity of their content, which is such as to hinder the exercise of the right which flows from article 21 TFEU.” The AG, in his Opinion in Shipova, para. 67, states that “it should be noted that the indication of gender has psychological effects, given that they determine male or female gender identity. Accordingly, although, in a specific situation, the indication does not correspond to the lived gender identity of the person concerned, the document submitted as proof of identity (identity card or passport) necessarily gives rise to doubts about its authenticity or veracity.”

  88. 88 Act on Gender Identity 26.743 of 9th May 2012. See a detailed examination of this Act by Herrera, M., 2023, op. cit. pp. 1130 et seq.

  89. 89 Gender Identity, Gender Expression and Sex Characteristics Act XI of of 14th April 2015.

  90. 90 Act no. 752 of 25th June 2014, amending the Act on the Central Personal Register (CPR) (Assignment of a new personal identification number to persons who perceive themselves as belonging to the other sex). Before this amendment in 2014, trans persons had to go through a highly intrusive process for legally change their gender which included castration. “The change of legal gender in Denmark occurs after a physical change in the form of castration. (…) For male-to-female change of gender, it is a requirement that the gonads and penis be surgically removed. For female-to-male change of gender, it is a prerequisite that the ovaries be removed”, Report from the Working Group on Change of Legal Gender of 27th February 2014, Document 585555, by the Danish Ministry of Justice, p. 20, https://www.justitsministeriet.dk/sites/default/files/media/Pressemeddelelser/pdf/2014/Rapport%20om%20juridisk%20k%C3%B8nsskifte.pdf (last accessed, May 2025). See further on the Danish legislation prior to 2014, Holdgaard, M. and Lemann Christiansen, B., Kønskifte – juridisk set, Jurist -og Økonomforbundets Forlag, Copenhagen, 2004.

  91. 91 Gender Recognition Act No. 25 of 22nd July 2015.

  92. 92 For an examination of the bill, see Trigo Garca, B., “Identidad sexual y derechos fundamentales: intersexualidad y asignación de sexo en el derecho español”, in Bayod López, C. (dir.) and Argudo Périz, J. L. (coord.), Persona y derecho civil, los retos del siglo XXI: (persona, género, transgénero, inteligencia artificial y animales sensibles), Tirant lo Blanch, Valencia, 2023. For the constitutional dimension of the Spanish act on trans persons, see Siverio Luis, S., 2025, op. cit. For an overview of the Spanish Act one year after its entry into force, and of its impact on terminology, filiation, and other related issues, see Nonell i Rodríguez, A. and Esteve Alguacil, L. “A un año de su vigencia: Análisis de la Ley Española 4/2023, de 28 de febrero, para la igualdad real y efectiva de las personas trans y para la garantía de los derechos de las personas LGTBI” Revista IGAL, vol. III, 1, 2024, pp. 7 et seq.

  93. 93 Case C-43/24, Shipova, para. 15.

  94. 94 T.H. v. The Czech Republic, para. 50.

  95. 95 Case C-148/02, Garcia Avello v Belgian State, of 2nd October 2003, ECLI:EU:C:2003:539.

  96. 96 Case C-353/06, Grunkin and Paul, of 14th October 2008, ECLI:EU:C:2008:559.

  97. 97 See in this vein, concerning Coman, Lorenzo Villaverde, J.M., 2024, op. cit. pp. 175-176.

  98. 98 Case C-4/23, Mirin, para. 44.

  99. 99 E.g. Council Regulation (EU) 2016/1103 of 24th June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (“European Matrimonial Property Regulation”); Council Regulation (EU) 2016/1104 of 24th June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships (“European Regulation on Property Consequences of Registered Partnerships”) or Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4th July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (“European Succession Regulation”), among others.

  100. 100 See art 81 of the Treaty on the Functioning of the European Union. See also, e.g., recitals 1 and 5 of the European Matrimonial Property Regulation, of the European Regulation on Property Consequences of Registered Partnership or 1, 5 and 7 of the European Succession Regulation.

  101. 101 See, e.g., recitals 54 of the European Matrimonial Property Regulation, 53 of the European Regulation on Property Consequences of Registered Partnership or 58 of the European Succession Regulation.

  102. 102 Dunne, P., 2018, op. cit., p. 235.

  103. 103 Following Dunne, “founding a right to non-binary recognition on the existence of intersex bodies directly reconnects legal gender to sex, and implicitly concedes that sex characteristics determine gender”, Ibid. p. 237.

  104. 104 Scherpe, J. M., “Lessons from the Legal Development of the Legal Status of Transsexual and Transgender Persons”, in Scherpe, J. M.; Dutta, A. and Helms, T. (eds.), The Legal Status of Intersex Persons, Intersentia, Cambridge, UK, 2018, p. 203.

  105. 105 Duffy, S., 2024, op. cit., p. 140. And both are within the broader LGBTI+ acronym, although, as Ammaturo mentions, “bisex, trans and intersex issues often risk being overshadowed”, Ammaturo, F. R. European Sexual Citizenship. Human Rights, Bodies and Identities, Palgrave MacMillan, Cham, Switzerland, 2017, p. 15.

  106. 106 Ashley, F. 2021, op. cit., p. 38.

  107. 107 Duffy, S., 2024, op. cit., p. 150. For an account of the various non-binary identities used in academic literature, see Ashley, F., 2021, op. cit., p. 38.

  108. 108 In this line, Dunne, P., 2018, op. cit. p. 238; Duffy, S., 2024, op. cit. p. 153.

  109. 109 Ashley supports its elimination by stating that “there are no good gender markers, because gender markers will always be tainted by their cisnormative past. If we are committed to material equality, we must imagine a future without them”, Ashley, F., 2021, op. cit., p. 44.

  110. 110 Dunne, P., 2018, op. cit., pp. 239-240.

  111. 111 Act of 18th December 2018, amending the civil status law, introducing §22(3) and §45b PStG and Act of 19th June 2024 on self-determination with regard to gender registration.

  112. 112 Act n. XXV of 12th July 2024 to amend the Gender Identity, Gender Expression and Sex Characteristics Act. “The Gender Identity, Gender Expression and Sex Characteristics (Amendment) Act (the “GIGESC (Amendment) Act”) strengthens the enjoyment of this right by establishing the legal recognition for non-binary genders, ensuring that individuals can officially identify in accordance with their lived gender. This Act represents a commitment to inclusivity, equality, and respect for diversity.”, The Gender Identity, Gender Expression and Sex Characteristics (Amendment) Act – User Guidelines, July 2024, Government of Malta, https://humanrights.gov.mt/wp-content/uploads/2024/09/User-Guidelines-GIGESC-Amendment-Act-EN.pdf (retrieved: May 2026).

  113. 113 This is the case of Denmark. the Consolidated Act no. 2693 of 28th December 2021 on passports, in its §4.5, states: “The municipal council may allow the gender to be designated as X in the passport if an applicant submits a written declaration stating that the request for the X gender designation is based on an experience of belonging to the other gender, that the person is intersex, does not identify as either male or female, or that the person documents having previously been assigned a new personal identification number under section 3(7) of the Act on the Central Person Register”. The Danish civil registration number (CPR number) shows the gender of the person as male or female. If the last digit of the 10-digit CPR number is an odd number, it corresponds to male, if it is an even number, it corresponds to female, see Consolidated Act no. 1010 of 23rd June 2023 on the Central Register of Persons.

  114. 114 It allows only a one-year period after birth during which the sex/gender marker for intersex persons may be left blank, before it must be registered as either male or female. Trigo García criticizes this period as being too short and advocates for a longer period that takes into account the minor’s wishes, similar to the solution provided under Maltese law, Trigo García, B., 2023, op. cit., p.130. Reflecting on the binary model and its relation to self-determination in the Spanish Act, Nonell i Rodríguez, A. and Esteve Alguacil, L., 2024, op. cit. pp. 16-17.

  115. 115 Y v. France, application no. 76888/17, Judgement of 31st January 2023, ECLI:CE:ECHR:2023:0131JUD007688817.

  116. 116 Ibid., para. 80.

  117. 117 Ibid., paras. 78-79.

  118. 118 STSJ AND 792/2023 of 23rd January 2023, ECLI:ES:TSJAND:2023:793.

  119. 119 Ibid., third legal ground.

  120. 120 Ibid.

  121. 121 Ibid.

  122. 122 Ibid. Pursuant to art 9.1 of the Spanish Civil Code: “The personal law applicable to individuals shall be determined by their nationality. Such law shall govern capacity and civil status, family rights and duties and mortis causa succession”.

  123. 123 See art 44 of the Spanish Civil Code. See also Rodríguez-Uría Suárez, I., “El impacto de la autodeterminación de género en el régimen jurídico del matrimonio y la filiación”, Revista Española de Derecho Internacional, Vol. 77, 2025, p. 132. As Rodríguez-Uría Suárez notes, however, an issue arises from a purely registration-related perspective, as the Spanish Civil Registry currently provides only for male or female sex/gender entries.

  124. 124 Dutta, A. and Pintens, W., “Private International Law Aspects of Intersex” in Scherpe, J. M.; Dutta, A. and Helms, T.(eds.), The Legal Status of Intersex Persons, Intersentia, Cambridge, UK, 2018, p. 419. See also, on Spanish law, Rodríguez-Uría Suárez, I., 2025, op. cit. p. 123 and Lara Aguado, A., La identidad de las personas transgénero, transexuales e intersex en situaciones de movilidad internacional, Aranzadi, Madrid, 2025. pp. 212-213.

  125. 125 Supporting the view of relying on national law concerning gender in Spanish private international law, Lara Aguado, A., 2025, op. cit., pp, 214 et seq.

  126. 126 Although they admit that it may be the only available solution in many jurisdictions, see Dutta, A. and Pintens, W., 2018, op. cit., pp. 420-421, 423.

  127. 127 Ibid., p. 421.

  128. 128 “The recognition principle could even be clothed in a conflict rule, which provides that the legal gender of a person registered by a competent authority is governed by the law of the state of registration”, Ibid. p. 425. That, is, lex registrationis as applicable law.