The CJEU has ruled that proof of gender surgery is not required for the rectification of data relating to gender identity.
In 2014, VP, an Iranian national, obtained refugee status in Hungary. According to their medical certificates, although that person was born female, their gender identity was male. That person was nevertheless registered as female in the asylum register, which is kept by the Hungarian asylum authority and contains identification data.
In 2022, the VP requested, inter alia, that the asylum authority rectify the entry in respect of their gender in that register, on the basis of Article 16 of the General Data Protection Regulation (GDPR). That request was rejected on the ground that VP had not proved that they had undergone gender reassignment surgery, and VP brought an action against that rejection before the Budapest High Court (Hungary).
The CJEU has ruled that for the purposes of exercising their right to rectification, a person may be required to provide relevant and sufficient evidence that could reasonably be required in order to establish that the data is inaccurate. However, a Member State may not, under any circumstances, make the exercise of the right to rectification conditional upon the production of evidence of gender reassignment surgery.
A requirement to produce gender reassignment surgery undermines, in particular, 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 of the Charter Fundamental Rights of the European Union.
