Europe’s top court, at odds with SCOTUS: the EU must recognize gender identity on official documents

The Court of Justice of the European Union (CJEU) ruled that the bloc's 27 members will have to issue identity documents with the gender declared by their citizens. The measure thus covers countries such as Germany, Spain, Hungary, Denmark and Bulgaria.

The European court had been consulted by the Bulgarian judiciary following the refusal of local authorities to issue identity documents as a woman to a transgender, according to AFP. In 2017, the Bulgarian courts were asked by the person, a resident of Italy, to intervene, arguing that the refusal hindered their right to free movement.

CJEU said E.U. law enabled transgender people to change their status on their I.D. documents, and this legislation took precedence over national laws that contradicted it. "Member state legislation which does not permit the amendment of the gender data of one of its nationals who has exercised his or her right to freedom of movement is contrary to E.U. law," it noted.

According to the same court, a discrepancy between the gender a person claims to be and the data appearing on his or her document may hinder his or her right to free movement.

Governments of countries such as Bulgaria, Hungary and Slovakia are likely to protest the ruling. Several nations in the European group were already issuing documents in line with the court's new requirements, although not without opposition from opposition political parties.

The measure goes in the opposite direction to that decided by the U.S. Supreme Court. Last November, the justices of the highest court validated the use of passports that only include biological sex. Upon taking office, Donald Trump removed a Joe Biden measure that included the "X" box in the sex section of the document. It was intended as an umbrella for any American who did not identify as male or female, based on birth. Trump removed the option, sparking a legal battle in the courts.

The measure was blocked by lower courts. SCOTUS reinstated it with a 6-3 ruling, a split that respects the court's usual ideological lines. The majority held that including biological sex "does not run afoul of the principles of equality before the law any more than showing one's country of birth," asserting that the document gave "faith of a historical fact without subjecting anyone to differential treatment."