CJEU - C-247/23 - Deldits
| CJEU - C-247/23 Deldits | |
|---|---|
 | |
| Court: | CJEU |
| Jurisdiction: | European Union |
| Relevant Law: | Article 16 GDPR Article 23(1)(e) GDPR Article 8(2) CFR |
| Decided: | 13.03.2025 |
| Parties: | Országos Idegenrendészeti Főigazgatóság |
| Case Number/Name: | C-247/23 Deldits |
| European Case Law Identifier: | ECLI:EU:C:2024:747 |
| Reference from: | Fővárosi Törvényszék (Hungary) |
| Language: | 24 EU Languages |
| Original Source: | AG Opinion Judgement |
| Initial Contributor: | fb / tjk |
The CJEU ruled that Article 16 GDPR requires the rectification of a transgender data subject's inaccurately recorded gender in a public registry. While the competent authority may ask for proof of the inaccuracy, requiring the data subject to prove they have undergone gender reassignment surgery violates their human rights.
English Summary
Facts
The data subject is a trans person who was granted refugee status in Hungary. When applying for this status, they pointed out that they identified as male and relied on their transsexuality as the ground for their recognition as a refugee. However, the Hungarian National Directorate-General for Immigration Policing (Országos Idegenrendészeti Főigazgatóság, the controller) recorded them in the register as female.
In 2022, the data subject, pursuant to Article 16 GDPR, submitted a request to the controller to rectify the asylum register in two particulars: a change of the name under which they had been registered and a change of gender from female to male. On 11 October 2022, the controller rejected the request, arguing that the documents provided by the data subject did not prove that they had undergone gender reassignment surgery and that the applicant’s gender had changed.
Therefore, the data subject brought proceedings before the Budapest High Court (Fővárosi Törvényszék). This court, having doubts regarding the interpretation of Article 16 GDPR, stayed the proceedings and referred the following questions to the CJEU:
- Must Article 16 of the GDPR be interpreted as meaning that, in connection with the exercise of the rights of the data subject, the authority responsible for keeping registers under national law is required to rectify the personal data relating to the gender of that data subject recorded by that authority, where those data have changed after they were entered in the register and therefore do not comply with the principle of accuracy established in Article 5(1)(d) of the GDPR?
- If the answer to the first question referred is in the affirmative, must Article 16 of the GDPR be interpreted as meaning that it requires the person requesting rectification of the data relating to his or her gender to provide evidence in support of the request for rectification?
- If the answer to the second question referred is in the affirmative, must Article 16 of the GDPR be interpreted as meaning that the person making the request is required to prove that he or she has undergone gender reassignment surgery?’
The data subject argued that, pursuant to Article 5(1)(d) GDPR, the accuracy of data must be assessed having regard to the purposes for which they are processed. In this case, the purpose of the asylum register is to identify refugees.
On this point, the data subject pointed out that where the gender of a transgender person as recorded does not reflect the identity by which they are recognised in public, that record does not facilitate their identification and may even expose them to discrimination and harassment.
The Hungarian Government submitted that, according to Article 6(2) and 6(3) GDPR, the data subject’s right to have an entry in an official record, such as the asylum register, rectified may be exercised under the law of a Member State only and not by direct reliance upon Article 16 GDPR.
Advocate General Opinion
First question
First, Advocate General Collins (AG) noted that the question asked by the referring court does not reflects the facts if the case. While the question seems to imply that the data subject’s change of gender identity occurred after the recognition of their refugee status in 2014, facts suggest that this occurred prior to it, since the change of gender identity appears to have been the basis upon which Hungary recognised the data subject’s refugee status. Therefore, the AG suggested the CJEU to take these facts into account and consider that the rectification request aimed at correcting an original error and not to amend that record in order to reflect a change in circumstances.
Secondly, the AG recalled that the right to rectification is enshrined both in Article 16 GDPR but also in [1]Article 8(2) of the Charter of Fundamental Rights (CFR).
Thirdly, the AG pointed out that since the accuracy of personal data may vary depending on the context in which it is processed, the purpose of the collection of data has a direct bearing upon an assessment of its accuracy. In the case at hand, one of the purposes of the asylum register is to identify a person and gender is considered to be one of the identifiers.
On this point, the AG noted that when Hungary recognised the data subject’s refugee status, they identified as a transgender male. Therefore, the AG opined that the entry of the data subject’s gender as “female” in the asylum register thus appears to have been inaccurate for the purposes of Article 5(1)(d) GDPR.
Fourthly, the AG acknowledged that the right to rectification is not absolute and could be limited under certain conditions, according to Article 23 GDPR. In particular, Article 23(1)(e) GDPR relates to the “keeping of public registers kept for reasons of general public interest”. Therefore, according to the AG, a Member State could theoretically rely on Article 23(1)(e) GDPR to partially restrict the right to rectification in order to ensure the reliability and consistency of public records, including records of civil status. However, nothing in the case at hand suggests that such a law has been implemented in Hungary.
Moreover, this cannot on itself be an obstacle to granting an application to rectify the gender in an asylum register so as to record their gender identity as it was at the time it was entered therein, since this type of application only serves to enhance the reliability of that register and the accuracy of the data recorded therein.
Therefore, the AG advised the Court to answer that Article 16 GDPR, read in the light of Article 5(1)(d) GDPR, is to be interpreted as meaning that a national authority responsible for keeping a register of refugees is, upon application, required to rectify personal data on the gender of a refugee which that authority had incorrectly recorded at the time they were entered in that register.
Second and third questions
According to the AG, the second and third questions seek to know which evidence a data subject should submit in support to their gender rectification request under Article 16 GDPR and whether that person may be required to furnish proof of having undergone gender reassignment surgery.
First, the AG noted that Article 16 GDPR does not specify anything about the evidence a data subject should provide. Therefore, this needs to be assessed on a case-by-case basis. This means that, in certain cases, the data subject might be required to produce evidence that may be reasonably necessary to establish the inaccuracy of that data in the light of the purposes for which they were collected or processed.
However, the AG emphasised that the data subject does not have to claim or to demonstrate a particular interest in the rectification of inaccurate data or that the alleged inaccuracy causes any harm. In the case at hand, the AG opined that it is sufficient for the data subject to prove that Hungary recognised their refugee status in 2014 on the basis of their pre-existing transgender identity and that the asylum register does not accurately record that identity.
Finally, as for the necessity to have undergone gender reassignment surgery, the AG noted that the European Court of Human Rights has repeatedly hold that imposing this requirement goes against the ECHR. Therefore, imposing such a requirement would have the effect of negating the right to rectify inaccurate data on the gender of a transgender data subject.
Therefore, the AG suggested the CJEU to answer that a national authority responsible for keeping a register of refugees may require a data subject requesting rectification of data to produce evidence to establish the inaccuracy of that data in the light of the purposes for which they were collected or processed but may not be required to prove they have undergone gender reassignment surgery.
Holding
First question: Article 16 GDPR demands rectification of data on gender identity
The Court observed that under Article 16 GDPR in conjunction with the principle of accuracy (Article 5(1)(d) GDPR) and Article 8(2) of the Charter of Fundamental Rights (CFR), the data subject has the right to obtain from the controller, without undue delay, the rectification of inaccurate personal data concerning him or her.
The court recalled that it had laid out in Nowak that the purpose for data were collected were to be considered when assessing the accuracy of data. Thus, the court indicated, that if the purpose of collecting those data was to identify the data subject, those data would appear to refer to that person’s lived gender identity, and not to the identity assigned to them at birth.
In that context, the court clarified that a Member State cannot limit the exercise of the right to rectification based on the absence of a national procedure to proof a transgender identity but only on legislative measures adopted under Article 23 GDPR.
However, even if such a legislative measure existed, the court held, that although EU law does not detract from the Member States’ competence in the legal recognition of person's gender identity, those States must comply with EU law, including the GDPR, read in the light of the CFR. The court held, that national legislation preventing a transgender person from fulfilling a requirement which must be met to rectify their data on gender identity by not recognizing such identity must be regarded as being incompatible with Article 8(2) CFR and its specific expression in Article 16 GDPR.
Consequently, the Court concluded that Article 16 GDPR must be interpreted as requiring a national authority responsible for keeping a public register to rectify the personal data relating to the gender identity where those data are inaccurate.
Second and third question: No requirement to proof of gender reassignment surgery
The court found that, for the purposes of exercising their right to rectification under Article 16 GDPR, a person may be required to provide relevant and sufficient evidence that may reasonably be required in order to establish that those data are inaccurate. The court further stated, that any limitation of the rights under the GDPR pursuant to Article 23 GDPR must respect the essence of the fundamental rights and freedoms and be laid down by law.
First, the court found that the evidential requirement for rectification limiting Article 16 GDPR seems to have no basis in Hungarian law.
Secondly, the court found, that Article 8 of the European Charter of Human Rights (corresponding to Article 7 CFR) includes the right of transgender persons to personal development and physical and moral integrity, as well as to respect for and recognition of their gender identity. Additionally, the court referenced the European Court of Human Right's ruling, that recognition of a transgender identity could not be made conditional on the performance of surgical treatment not desired by that person.
Thirdly, the court held, that in any event, a requirement of evidence of gender reassignment surgery is neither necessary nor proportionate to ensure the reliability and consistency of a public register such as the asylum register, since a medical certificate, including a psychiatric diagnosis, may constitute relevant and sufficient evidence in that regard.
Thus, the court held, that a Member State may never make the exercise of the right to rectification conditional upon the production of evidence of gender reassignment surgery because such a requirement would undermine the essence of the right to the integrity of the person and the right to respect for private life, referred to in Articles 3 and 7 CFR.
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