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- Tune In To The EU’s Periphery: Bulgarian Supreme Court Bans Gender Changes On Documents - March 9, 2023
While member states in the European Union have moved towards granting more rights to transgender individuals, the Bulgarian Supreme Court struck a major blow to the transgender community. While individual courts were previously allowing individuals to change their gender legally, the Supreme Court has now banned this. This applies even to individuals who have completely transitioned, including surgically. Before this ruling, some judges were allowing trans individuals to change their gender legally. This is because these judges assumed that changing your gender legally was permissible under Bulgarian law, yet it is now clear that the Supreme Court disagrees.
There is support for the ruling in Bulgaria due to how legal recognition of a gender change could potentially violate national laws. An example is if someone is already married yet changes gender, their marriage would be illegal. This is because in Bulgaria gay marriage is not yet legal. According to the National Constitution which was passed in 1991 after it became independent from the Soviet Union, marriage is between a man and a woman. In the scenario that the man or woman in a marriage was to change their gender, the couple would then find themselves in a gay marriage which is not yet possible. Civil Unions are also not yet permitted for same-sex couples, such as in Italy. Besides Bulgaria, same-sex couples are also not allowed to enter into civil unions in Latvia, Lithuania, Poland, Romania, and Slovakia.
Legal Protections And Challenges Of The LGBT Community
While the situation in Bulgaria is different for the LGBT community compared to Western EU member states, there are still some legal protections. Discrimination based on sexuality has been illegal since 2004 as a condition of employment, social security, education, health care, and housing. Doctors can and have legally performed gender affirmation surgeries in Bulgaria, although the process is not as developed and standardized as in other nations.
While some legal protections do exist for the LGBT community in Bulgaria, the group still faces numerous barriers and discrimination compared to the majority of EU member states. An example of a barrier for the LGBT community includes lesbian couples being barred from IVF treatment. Lesbian women must seek out IVF treatment individually and another woman can never adopt that child as a second parent. Another barrier is the difficulty of changing Bulgaria’s law regarding marriage. In order to change Bulgaria’s National Constitution to permit marriage between two people of the same gender, two-thirds of the parliament would have to vote in approval.
Hate speech against the community is also common, particularly before elections. Some of the hate speech comes from the candidates themselves, an example being in local elections in 2019 when some candidates campaigned on a pledge to ban pride events from Sofia, the Bulgarian capital. In 2021, Boyan Rassate, part of the ultra-nationalist National Union party who ran as a presidential candidate led an assault against an LGBT center in Sofia. Rassate led a group of ten people to the center and personally punched a woman at the center. He then took a knife to puncture the tires of scooters parked outside the center. The problem is, there is currently no hate speech law, so this speech is currently permitted.
Role Of The European Union In Promoting LGBT Rights In Bulgaria
In another ruling, a Bulgarian court ordered the city of Sofia to provide the baby of a lesbian’s couple with identification documents. This was crucial for baby Sarah due to her stateless status. Sarah was born in Spain, but neither of her mothers is a Spanish citizen and Spain does not grant through jus soli (citizenship based on place of birth). One mother is from Gibraltar, but she cannot pass on her UK citizenship to the child due to being a UK citizen by descent and because the baby was born outside the UK. Fortunately for baby Sarah, the Bulgarian Court enables her to get a Bulgarian passport after she gets a birth certificate whether or not gay marriage is yet legal. Both mothers were also able to be included on the birth certificate. The Bulgarian court decision came as a result of the European Court of Justice.
Bulgaria must abide by European Union law as a member state of the European Union. The European Court of Justice ensures this. The European Court of Justice got involved in this case to protect baby Sarah’s freedom of movement. Baby Sarah had no passport, and her mothers could not travel with her outside of Spain in order to introduce her to relatives. As baby Sarah is entitled to Bulgarian citizenship through one of her mothers, Bulgaria was depriving her of the ability to freely move throughout the 27 member states of the bloc only because she has two mothers. Bulgaria’s rationale for gay marriage not being legal in order to attempt to not include both mothers on the birth certificate is also questionable due to marriage not being required in order to be a parent. According to the National Statistical Institute in Bulgaria, 60 percent of all children are born outside of marriage.
The ECJ had a similar ruling in a case involving Poland and another lesbian couple living in Spain. In an additional court case, a Bulgarian court ruled in line with a ruling by the European Court of Justice that involved the recognition of a lesbian couple’s marriage that took place in France. While Bulgaria currently does not permit same-sex couples to marry in Bulgaria, they must recognize marriages that took place in other European Union member states
The LGBT community does not have equal rights throughout the European Union as granting rights such as marriage, adoption, and legal protection against hate speech has been left to the national governments of member states. This means that some member states have more legal protections than others. Nothing says, however, that this will not change in the future. As each member state continues to evolve, it is possible that the LGBT community is granted more rights in periphery nations than the group already has in western Europe.
For More Information Please Read The Following:
Nikolov, Krassen. “Bulgaria bans gender reassignment”, Euractiv, 21 February 2023
Coen, Emanuele. “LGBT rights in the EU Member States”, L’Espresso, 2017
Caicedo, Soraya, and Godoy, Natalia. “Australian woman sues Bulgaria for not recognising same-sex marriage”, SBS, 13 July 2018