By Rahul Garg, a B.A., LL.B. (Hons.) student reading law and policy sciences at the National Law University, Jodhpur. His research interests include gender studies, human rights, international refugee law and international humanitarian law.
I am still trying to change my documents, which seems impossible now… imagine that your refugee status is based on being trans, but you do not have the right to change your documents.
– A statement by an Iranian refugee in Hungary
On 16 July, 2020, weeks after the Hungarian Parliament passed the discriminatory T/9934-Amendment proposing to end the legal recognition of transgender people on account of their self-perceived gender identity, the European Court of Human Rights (hereinafter, “ECtHR”) in the landmark decision of Rana v. Hungary has now affirmed that Hungary is obligated to legally recognize transgender refugees based on their self-perceived gender identity. The case involved an Iranian transgender refugee residing in Hungary, who was denied legal recognition of his self-identified gender citing the non-availability of a Hungarian birth certificate in his case. The decision of the Strasbourg Court, while upholding the right to legal recognition of the applicant, marks a compelling historic win for transgender rights in Hungary, which it does by recognizing the Hungarian non-citizens’ (refugees’) right to respect for private life at par with Hungarian citizens under Article 8 of the European Convention of Human Rights (hereinafter, “ECHR”), a right which the Orwellian narrative of the Orbán Government has more recently tried to subdue. This blog post intends to argue how in addition to being a human rights violation within the ECHR; the non-recognition of transgender refugees by Hungary is a failure to fulfill its various other international obligations, including those within the refugee law context.
Right of transgender people to legal recognition of their gender-identities has been considered to be a significant aspect of human dignity. Accordingly, Paragraph 21 of Recommendation CM/Rec(2010)5 of the Committee of Ministers of the Council of Europe, while recognizing this right, casts a positive obligation on the member States to take appropriate measures to legally recognize a transgender person’s gender post reassignment/preferred gender-identity by ensuring a change of their name and gender in their official documents including in their educational and work certificates. It requires this procedure to be quick, transparent and accessible. Furthermore, Resolution 2048 of the Parliamentary Assembly of the Council of Europe iterates legal recognition of one’s gender to be an important aspect of self-determination, under Paragraph 6.2.1 of which, member States are required to ensure that the birth certificates, passports, identity cards and all the other relevant documents reflect one’s self-identified (preferred) gender in a quick, transparent and accessible manner. The United Nations High Commissioner for Human Rights also recognized the positive obligation of states to facilitate legal recognition and to establish arrangements and procedures for reissuance of relevant identity documents in its 2011 Report.
In Christine Goodwin v. United Kingdom, the ECtHR held that the States have a positive obligation under the ECHR to make changes in the civil-status data, so as to accord full recognition to gender change, such as in situations where a person has undergone reassignment surgery. This position was reiterated by the ECtHR in Grant v. United Kingdom. The ECtHR highlighted the reasoning behind positive obligation in the case of Hämäläinen v. Finland, where it observed that positive obligation on States (such as ensuring proper procedure, appropriate regulatory framework and enforcement machinery) in the context of legal recognition was vital to ensure respect for the physical and the psychological integrity of a transgender person. Finally, while contextualizing what was entailed by a positive obligation, the ECtHR in the 2019 case of X v. The Former Yugoslav Republic of Macedonia held that the requirement of positive obligation meant that States were required to put in place a clearly defined, effective and accessible procedure of recognition of change in one’s name and gender.
In the present case, there is a gap in the legislative framework in Hungary, in that there is no statutory procedure, let alone an effective one, for recognition of gender reassignment and the subsequent name-change in case of otherwise lawfully settled, transgender non-Hungarian citizens. This complete lack of procedure arbitrarily excludes transgender refugees from getting identity documents which reflect the name and gender which corresponds with their gender identities, violating their human dignity. In the absence of a legal mechanism which can ensure recognition for transgender refugees at par with Hungarian citizens, I argue that Hungary fails to fulfill its positive obligations under the ECHR and the Statute of the Council of Europe.
As a justification to the non-recognition of transgender refugees, Hungary maintains that since transgender refugees do not possess Hungarian birth certificate, it is not possible to make a name and gender change in their official documents sans a Hungarian birth certificate. This segment discusses that the access to legal gender recognition procedure being made conditional on the possession of a Hungarian birth certificate is disproportionate and bad in law, by relying on the “doctrine of margin of appreciation” as developed and used on multiple occasions by the ECtHR. The ECtHR in the 1968 Belgian Linguistic Case identified what is now called the horizontal margin of appreciation, which is a balancing act between the general interest of the community and the individual’s fundamental human rights. In other words, this doctrine alludes to the doctrine of proportionality, a recognized principle in law, which offers some discretionary margin to States, after considering the nature of the right which has been alleged to be violated by the individual on one hand, and the aim sought to be achieved by the legal measure exercised by the State, on the other.
In the present case, considering the facts and the circumstances, Hungary has a limited margin of discretion vis-à-vis the resultant human rights violations due to the deficient legal framework. Hungarian authorities justify their inability to legally recognize the gender identity of a transgender refugee on purely formal grounds of the lack of a Hungarian birth certificate, the absence of which according to them leads to inconsistency in civil status records; due to a difference in the civil status (name and gender markers) of a transgender refugee as it reflects in their country of origin documents and their host country documents, thereby mandating stringent legal formalities in the idea of general interest.
However, the lack of legal recognition places transgender refugees at a particularly high risk of discriminatory treatment, harassment and violence in their daily lives. Since their official gender on identity documents does not match with their self-identification/physical appearance, they are exposed to serious discrimination, suspicion and violence, every time they use their official documents, be it at the bank, at workplace, when renting out a property, when making an appointment with a doctor, while booking a hotel accommodation, while travelling, when using public transport, or something as simple as picking a parcel. For the transgender refugees in Hungary, having to avoid suspicion and having to explain that the identity document being used is in fact theirs, perhaps multiple times a day, means coming out to strangers on a regular basis, paving way for difficulties, transphobia and an unwarranted interference in one’s personal space. The absence of a procedure therefore has serious impact on a very essential aspect of an individual’s intimate identity.
In the given situation, while evaluating the competing interests of the individual applicant and the community as a whole, the repercussions of an absence of legal recognition of an individual outweigh a mere administrative inconvenience which the Hungarian authorities shall suffer while developing an alternative procedure for recognition transgender refugees in the absence of a birth certificate in their case. This offers a very narrow margin of appreciation to the State, making the impact that an absence of procedure has on transgender refugees to be disproportionate. Therefore, the justification given by Hungarian authorities is not well-founded in law, since it fails to strike a fair balance between the individual interest and the general interests of the Hungarian community as a whole.
The justification given by the Hungarian authorities also defies logic, since it fails to consider the peculiarity of the situation in which a transgender ‘refugee’ is placed, in specific. Article 1A(2) of the 1951 Convention relating to the Status of Refugees provides for the grounds for determination of refugee status based on which asylum can be sought, provided there is a well-founded fear of persecution. It mentions these grounds to be race, religion, nationality, political opinion or membership of a particular social group. Although gender is not explicitly mentioned as a ground warranting a well-founded fear of persecution, claims to refugee status based on one’s gender identity (and sexual orientation) have been interpreted to fall under claims based on membership of a particular social group by the United Nations High Commissioner of Refugees in Guidelines on International Protection No. 9. Furthermore, Principle 23 of the Yogyakarta Principles recognizes the right to seek and enjoy asylum from persecution related to one’s sexual orientation or gender identity. Paragraph 42 of Recommendation CM/Rec(2010)5 of the Committee of Ministers of the Council of Europe reiterates this understanding.
In case of Hungary, the Hungarian authorities have failed to take into account the fact that the very reason the applicant had been recognized as a refugee in the first place was precisely because he had been persecuted in his country of origin based on his transgender identity. Hungarian authorities have, on evidenced occasions asked transgender refugees who have been granted refuge based on their gender identity, to approach the country of origin to get their gender marker changed on their birth certificates, which is absurd, arbitrary and defiant of logic. It amounts to a serious failure on part of Hungarian authorities to examine the context and peculiarity of these instances, rendering the protection to transgender refugees merely theoretical and illusory.
It is time that Hungary establishes an alternative route for legal recognition of transgender refugees at par with Hungarian citizens. As a policy alternative, Hungary can incorporate measures by entering the name and the gender change in documents which have been issued by Hungary. The authorities can look at other jurisdictions, such as Canada, where quick, transparent and accessible procedure has been laid down by the immigration authorities ensuring that the official documents reflect the preferred gender identity of a person who has succeeded in his/her asylum claim in Canada.
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