Issues related to gender identity that differs from biologically determined sex are the subject of serious public debate, and the growing number of court cases for sex change and contradictory judicial practice have led to the need for intervention by both the Constitutional Court of the Republic of Bulgaria and the General Assembly of the Civil Collegium of the Supreme Court of Cassation, which were faced with the simple task of deciding whether it is permissible under Bulgarian law for biological sex to differ from legal sex, i.e., the sex indicated in identity documents.
The task is “simple,” given that the conditions for admissibility of gender reassignment by court order are subject to consistent and unambiguous regulation in the practice of the European Court of Human Rights, whose jurisdiction supersedes that of the Constitutional Court and the Supreme Court of Cassation, as well as any other national court. On the other hand, any national court decision or legislative authorization that contradicts this practice should not be applied.
Unfortunately, this does not mean that every request for a legal gender change that meets the criteria set out in the case law of the European Court of Human Rights will be granted by the Bulgarian courts. This fact, however, is solely due to the continuing unlawful decisions of national courts to deviate from our country’s binding commitments as a member of the Council of Europe.
In cases where the Bulgarian court refuses to grant the request for legal gender change, the actual consequence for the applicant will not be a refusal to recognize their gender identity at all, but will only lead to a delay in this recognition, given the need to bring a case before the Court in Strasbourg, which has consistently and repeatedly condemned Bulgaria for such refusals. The potential condemnation of our country, in turn, leads to the award of compensation to the applicant, which varies depending on the case and can reach up to €7,500.
Criteria for admissibility of requests for change of gender
Freedom of self-determination of gender identity is recognized as an element of the right to personal and family life, which according to the provisions of the European Convention for the protection the rights of human beings is inviolable and not subject to any restrictions, except for those that would be present in the event of overriding public interest. Strictly speaking, the manner in which a single person self-identifies in extremely rare cases can be of interest to different from his personal.
Bulgarian legislation does not provide for an explicit procedure within which, in a quick, easy, and accessible way to achieve recognition of gender identity and, accordingly, legal gender change for transgender and intersex people in their identity documents, which in itself constitutes a violation of the right under the European Convention on Human Rights.
However, since one of the fundamental principles of law stipulates that denial of justice is inadmissible, in the absence of an explicit statutory procedure, the closest procedural procedure is used, which is the procedure under the Civil Registration Act.
Given the lack of explicit legal provisions on gender reassignment, the criteria for the admissibility of such a request are derived from the consistent and unambiguous practice of the European Court of Human Rights. There are two such criteria.
Firstly, in order for such a request to be granted, it is necessary to establish a condition of transsexualism, which is currently considered a gender identity disorder according to the International Classification of Diseases, 10th revision. This condition is established through an expert assessment appointed by the court hearing the request.
Interesting! According to the 11th revision of the International Classification of Diseases, which came into effect in February 2022, the term “transsexualism” has been removed as “obsolete” and replaced with the concept of “gender identity disorder.” 11th revision of the International Classification of Diseases, which came into force in February 2022, the term “transsexualism” is removed as “obsolete” and replaced with the term “gender incongruence in adolescence and adulthood.” At the same time, the condition is no longer classified under “Mental and behavioral disorders,” as it was previously. Instead, it is now classified under “Conditions related to sexual health.” As explicitly stated by the World Health Organization, “this reflects current knowledge that transgender and gender-diverse identities are not a mental health condition and that classifying them as such can cause significant stigma.”
The second criterion that must be met in order for a gender change to be allowed in identity documents is the establishment of a “serious and unshakeable decision to change biological sex due to the psychological and social gender role performed.”
IMPORTANT! According to the practice of the European Court of Human Rights, and also according to prevailing Bulgarian national judicial practice, it is not necessary to have undergone gender reassignment surgery in order for the application to be granted. A requirement to the contrary constitutes an unacceptable interference with the inviolability of physical integrity as part of the right to private and family life. Furthermore, sex reassignment surgery cannot be performed in Bulgaria due to restrictions under criminal law.
The question remains whether it is necessary to start hormone therapy in order to change the body from the biological sex to the one with which the person identifies. This is so for several reasons.
The first is that there are very few specialists in Bulgaria who have the necessary professional qualifications to prescribe such therapy. Most of them are reluctant to do so, as it is likely to cause infertility (moderate bodily harm under the Criminal Code). The small number of competent specialists and the potential for criminal liability when prescribing hormone therapy for gender reassignment makes it extremely difficult for trans and intersex people to access this medical service.
Under these circumstances, imposing a requirement to have started hormone therapy in order to have a request for legal gender recognition granted amounts to a practical denial of justice, given the inaccessibility of this service.
The second reason is that hormone therapy itself constitutes a medical intervention to change the body, including its basic functions, and the choice to undergo such an intervention is again part of the right to physical integrity. Requiring a person to have resorted to such therapy in order to have their gender recognized can be interpreted as an unacceptable interference with the right to physical integrity.
The actual undertaking of hormone therapy should only be interpreted as a manifestation of a “serious and unshakeable decision to change biological sex”, but not as a requirement for respecting the request for gender recognition.
Procedure for legal gender change
The procedure is initiated by a specific request to the court at the permanent address of the applicant. The proceedings are of a protective nature and a prosecutor is summoned to attend.
The purpose of the procedure for legal gender reassignment is to recognize the gender of the applicant, obtain names and a personal identification number (EGN) in accordance with the recognized gender, and obtain new identity documents reflecting the changed names, EGN, and recognized gender.
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You can find more interesting topics related to the observance of rights under the European Convention on Human Rights in the section “Human Rights”.
Sole proprietorship law firm company “Silvia Petkova” has at its disposal specialists with experience in representing cases for gender reassignment through legal proceedings, as well as lawyers, specialized in the field of human rights and representation before European Court of Human Rights.
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Consultations and representation in court cases are provided only by appointment.
The company’s specialists also provide remote consultations and representation in cities outside Sofia.