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The case concerns access for asylum beneficiaries, and in general for non-Hungarians, to the gender recognition procedure. According to the ECtHR press release:
The case concerned a transgender man from Iran who had obtained asylum in Hungary but could not legally change his gender and name in that country.
The applicant was born a female in Iran but has from an early age identified as a male. In 2015 he applied for asylum in Hungary and in December of that year the asylum authority granted his application, finding that he had suffered persecution in Iran owing to his gender identity (transsexuality). In March 2016 the applicant applied for a gender and name change to the Hungarian Immigration and Citizenship Office given that his Iranian documents identified him as a female. The Office informed the applicant that gender reassignment was in principle registered by the Office of the Registrar of Births, Marriages and Deaths. In July 2016 the Office issued a formal rejection decision without examining the application on the merits, holding that it did not have jurisdiction to take any further action. As the applicant’s birth had not been registered in Hungary, the application could not be forwarded to the registrar. The Budapest Administrative and Labour Court dismissed an appeal by the applicant in November 2016 and in February of the following year the applicant lodged a constitutional complaint. The Constitutional Court rejected the complaint in June 2018, finding that the judge of the lower court could not have found differently in the applicant’s case given the lack in the law of any statutory basis for the changing the names of non-Hungarian citizens. However, it emphasised that the right to change one’s name was a fundamental one, and that making such a change went hand in hand with changing gender. It found the legislative omission to be disproportionately restrictive and unconstitutional and called on Parliament to find a solution to allow lawfully settled people without Hungarian birth certificates to change their name, for example by entering the name change on other official documents issued by the Hungarian authorities. The legislative change requested by the Constitutional Court has not yet been carried out.
The ECtHR noted that the domestic system for gender recognition had excluded the applicant simply because he did not have a birth certificate from Hungary, a change in the birth register being the way name and gender changes were legally recognised. The Court concluded that a fair balance had not been struck between the public interest and the applicant’s right to respect for his private life owing to the refusal to give him access to the legal gender recognition procedure.
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