With Interpretive Decision No. 2/2020 of 20.02.2023 on Interpretive Case No. 2/2020, the General Assembly of the Civil Collegium (OSGK) of the Supreme Court of Cassation (SCC) decided: „The objective substantive law operating on the territory of the Republic of Bulgaria , does not provide for the possibility for the court to allow, in the proceedings under Chapter III, Section VIII of the Civil Registration Act, the change of the data regarding the sex, name and uniform civil status in the acts of civil status of an applicant who claims to be transgender.“
In one of its most contested interpretative decisions to date – upheld by 28 Supreme Court Justices and signed by a dissenting opinion of 21 – the Civil Panel of the Supreme Court of Cassation (SCC) „cut off“ the possibility for transgender people to change their legal gender (see its full text here ) .
Only once before has the Civil Society divided itself so drastically on a legal issue. The previous case was in 2016, when the interpretive decision on property claims (under case No. 4/2014) was passed by 26 to 19 votes. I.e. again the difference was 7 votes.
The operative part of the adopted interpretative decision reads: “ The objective substantive law, operating on the territory of the Republic of Bulgaria, does not provide for the possibility for the court to allow in the proceedings in accordance with Chapter III, Section VIII of the Law on Civil Registration a change of the data regarding the gender, the name and the uniform civil number in the civil status records of an applicant who claims to be transgender “ .
How it was, but it won’t be anymore.
The 7-vote ruling ends the practice of many courts allowing transgender people to legally change their gender. As „Lex“ wrote, until 2019 the Supreme Court itself had no hesitation whether, despite the absence of a legal framework, it was admissible, but rather the judges argued about what the prerequisites were for it to be allowed – whether an operation for sex change, is it enough that hormone therapy has started (for the changes in the practice of the Supreme Court, which also led to the formation of the interpretative case, see here in detail ) .
Judges allowed legal gender change, first relying on the Civil Registration Act, which states that gender cannot be changed administratively (Article 76, Paragraph 5), but regulates that a change in civil status data in compiled civil status acts is carried out by judicial or administrative procedure (Art. 73) , i.e. a court may order it. Another reason for allowing a legal change of gender was the Law on Bulgarian Identity Documents, which states: “ In case of change of names, the uniform civil number (the personal number/identity number of a foreigner), gender , citizenship or in the event of significant and permanent changes to the imagethe person is obliged to submit an application for the issuance of new Bulgarian personal documents within 30 days“ .
Requests of the specified persons to respect certain legal consequences arising from this self-determination“. I.e. at first glance, his interpretation should not be perceived as pre-determining the outcome of the interpretative case. At the same time, however, in the same decision, the Supreme Court emphasized that all state bodies are obliged to take into account its mandatory interpretation, that the concept of „gender“, as determining the personal and family status of citizens, has only biological content and reminded that any disregard for his decisions is a violation of the Constitution itself. By explicitly stating that there is an option to change civil status acts based on gender self-determination only for intersex(people who were born with indeterminate or mixed gender marks) , and for transsexuals – he pointed out that the ball is in the court of the legislator (more about the decision of the Constitutional Court, see here ) . uniform. And for the lack of reasons for the courts to justify why the public interest in not allowing a legal gender change prevails over the personal interest of the transsexual, they refer to the decision of the Supreme Court.“They state that the value understandings of society, formed by religion and morality, are characterized by stability and persistence as a regulator of behavior, in which the imposition by the state of legal authorizations that are in conflict with established moral and/or religious norms and principles, would be characterized by controversial legitimacy and would compromise their regulatory potential ,“ writes the Supreme Court.
The majority in the Civil Board then explained that a person’s legal change of gender also affects others – his children and his spouse. And it will lead to a situation inadmissible under the Constitution where there is a marriage between people of the same sex or children having children of the same sex. „The change would affect a foreign legal sphere, and that without the consequences being expressly provided for in the current law ,“ emphasizes the majority in the Citizens’ Collegium.
And he states: “ Such a change should be considered admissible only with detailed legislation, which is currently lacking .“ If the court allowed such a change without detailed legislation, it would place the legal position of the petitioner’s spouse and their children in a state of uncertainty. The change would not only affect a foreign legal sphere, but would also place the petitioner himself in a state of uncertainty, both with regard to the conditions under which his request would be granted, and with regard to his next position in the relations of those connected with him with ties of marriage and persons of origin“ .
Both the SC and now the SC states that whether transsexuals can legally change their gender depends not on them, but on the legislator. The power to regulate the conditions and the consequences of the fact that the individual has self-identified to a gender other than the biological one does not belong to the court . The approach to solving this question requires scientific judgment in more than one field of knowledge (biology, medicine, psychology, sociology, ethics, law). Only the legislator is competent to assess to what extent he will comply with the acts adopted by him with one or another scientific views on a certain matter and with the value understandings of society“, concludes the majority in the collegium.
The heavy criticism of 21 supreme judges
„With the adopted interpretive decision, a general, automatic and equal for all , regardless of specific features, prohibition on legal change of the gender of transgender persons , which in reality does not exist in the objective material law operating in the territory of Republic of Bulgaria“ , say 21 supreme judges who signed the decision with a dissenting opinion. It contains a sharp criticism of the majority’s position and its implications.
The separate opinion emphasizes that the SC explicitly said that it cannot interpret whether the ECHR takes precedence over the Bulgarian Constitution. And the signatories point out that none of the two acts are imposed over the other . „Hardly anyone thinks that the scope of application of Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, excluding its application to transgender persons in Bulgaria due to the biological explanation of the concept of „gender“ given by the Constitution, they state .
The special opinion states that biological (in the context of biological sex) means „related to life“ and points out the following: „Neither the Bulgarian court, for more than thirty years, has allowed a legal change of sex of deceased persons, nor The ECtHR has accepted that such a legal possibility exists. Transgender persons, intersex persons and other persons in whom gender change is necessary for medical reasons are living people and their gender is biological according to the Constitution of the Republic of Belarus. The legal change of their gender is not in contradiction with the „binary existence of the human species“, because it does not lead to a „third gender“, but is passed due to a biological set of characteristics from one gender to the other“ .
Other persons for medical reasons. Such a prohibition cannot also be derived by way of interpretation from the Civil Code by limiting the scope of application, for example, to Art. 76, para. 5 ZGR, which provides that gender can be changed by court order, and to § 1, item 17 of the DR of The Law on Protection from Discrimination, which provides for the prohibition of discrimination on the basis of „gender“, incl. on sex reassignment, regarding transgender persons, assuming that they apply only to intersex persons and other persons for whom sex reassignment is necessary for medical reasons,” stated 21 Supreme Court Justices.
transgender persons more unfavorably than intersex persons and other persons, where a legal change is necessary of gender for medical reasons, as well as transgender persons who have already legally changed their gender during these thirty years?”.
„Such treatment is based on gender and constitutes discrimination within the meaning of the law of the Union and the CCP, as it is not allowed by them“ , the signatories of the separate opinion emphasize.
State in which the dignity of the human person is irrevocable and inviolable. “ The rule of law in Bulgaria presupposes universal equality of dignity for all human beings, including transsexuals , “ they state.And they conclude that the adopted interpretative decision instructs the courts to refuse to consider on the merits the applications of transgender persons for legal gender reassignment on medical grounds – without taking into account the characteristic features of each individual case and assessing whether the balance between interests has been observed of society and of the individual, as well as whether their right to human dignity and respect for private life would be unjustifiably affected. And these instructions are in contradiction with what was adopted by the Civilian Collegium in 2015 (interpretive case No. 5/2013) that „every national court of all countries – parties to the CRPC, is also a national human rights court in the sense of Article 13 of the Convention“.
