The interpretative case was initiated by the order of 20.06.2020 of the President of the Supreme Casantion Court (SCC) on Order No. 86/27.04.2020 in case No. 698/2020 of the SCC, Fourth Civil Division, under Article 292 of the Civil Procedure Code, on the following issue:
Is it permissible, and under what conditions, for the court to allow, under the Civil Registration Act, a change in the details of the civil status records of an applicant who claims to be transgender?
By the interpretative decision of 20.02.2023, The General Assembly of the Civil Chamber (GACC) of the SCC unambiguously and unequivocally by way of interpretation derives a general, automatic and uniform for all, regardless of the specifics, prohibition of legal change of the sex marker of transsexuals, which in fact does not exist in the objective substantive law in force in the Republic of Bulgaria. This is also the dissenting opinion of 21 judges of the SCC.
What is the decision based on, what does it mean?
The interpretive decision in case No. 2/2020 of the GACC of the SCC of 20.02.2023 adopts a prohibition of legal gender reassignment for all transsexuals;
The prohibition is justified by established "moral and/or religious norms and principles";
According to the reasoning of the interpretative decision, "By the argument of the systematic constitutional provision, no international treaty which has effect in the territory of the Republic of Bulgaria can be imposed over the Constitution in the same way as it imposes and supersedes national laws and regulations which contradict it." "This means that the ECHR is not imposed over the biological explanation of the concept of "sex" given by the Constitution.
Nowhere in the Constitution of the Republic of Bulgaria and in the Acts is there a prohibition to change the sex entered in the birth certificates. On the contrary, Article 76(5) of the Civil Registration Act provides that gender shall be changed by judicial procedure. Since 1992, trans and intersex people in Bulgaria have changed their gender. The interpretative decison of the GACC of the SCC concludes that the general, automatic and one-size-fits-all prohibition of legal gender reassignment for trans people in Bulgaria requires that all claims by trans people be declared inadmissible, but at the same time requires that these cases be heard on the merits. That is to say, what the GACC in the interpretative decision tells us is that trans people's claims must be heard on the merits by three instances, but must ultimately necessarily be dismissed as unfounded.
What is the purpose of this achievement of legal thought? Is it not precisely an attempt to restrict the right of trans people to speedy access to the ECtHR, or is it an attempt to undermine the dignity of this group of people again? Or perhaps it is an attempt to place trans people in this country in a predicament for an unreasonable and prolonged period in which they are likely to experience feelings of "defencelessness, humiliation and anxiety." Whichever of the above, none of them can be seen as humane, respectful of human dignity and respectful of the human rights guaranteed by a range of international instruments, including the ECHR, CFR and others.
It is interesting to examine the present interpretatvie decision of the SCC in the light of the two judgments against Bulgaria, namely Y.T v. Bulgaria and P.H. v. Bulgaria. In P.H. v . Bulgaria, the ECtHR expressly emphasised: "As in Y.T. v. Bulgaria, the main issue in the present case is whether, given the margin of appreciation available to it, Bulgaria has struck a fair balance between the general interest and the applicant's personal interest in obtaining a change of her civil status. In that connection, the Court (ECtHR) observes that, even if it appears from the applicant's submissions and from the reasoning of the domestic courts that the applicable legislation did not permit a change of sex, the legal framework which existed and was applied in the present case enabled the applicant to bring an action to that effect and for the claim to be considered. It must therefore be determined whether the refusal by the domestic courts to grant the applicant's request for a change in her marital status constituted a disproportionate interference with her right to respect for her private life."
Clearly, Bulgaria has obligations under the ECHR, including an obligation to ensure the right of trans people in the country to have an easy, transparent, quick and accessible legal opportunity to change their legal gender in official documents. The recommendations of the Committee of Ministers and the Parliamentary Assembly of the Council of Europe, as well as of the UN High Commissioner for Human Rights, are along these lines. In this regard, it would be interesting to see how the Committee of Ministers implements the two judgments of the ECtHR against Bulgaria and what means would be used.
The big question in this interpretative decision is precisely where in the legal world stands the ECHR and where stands the Constitution of the Republic of Bulgaria and which of the two will prevail in the applicable law. After the ratification of the ECHR, the question of which of the two instruments "overrides" the other cannot be raised. Art. 149(1)(4) of the Constitution implies an assessment of the conformity with an international treaty concluded by the Bulgaria before its ratification. In the present case, this assessment was made in 1992 by Decision No. 7 of 02.07.1992 in Case No. 6/1992, when the ECHR was ratified, promulgated and entered into force, thus becoming part of the domestic law of Bulgaria. The conduct of this legal dispute in an interpretative case and the attempted manipulation of the legal world by the GACC is a clear abuse of law. And as the dissenting judges on this interpretative decision say "hardly anyone thinks that the Decision of the GACC can limit the scope of Article 8 of the The European Convention on Human Rights by excluding its application to transgender persons in Bulgaria because of the biological explanation of the concept of "sex" given by the Constitution.
Last but not least, in an interpretative decision, the GACC referred to EU law, drawing attention to ECJ decisions in several cases, namely, C-673/16, Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne, Reference for a preliminary ruling from the Curtea Constituţională a României, Judgment of the ECJ (Grand Chamber) of 5 June 2018, and C-148/02, Carlos Garcia Avello v Belgian State, Judgment of 2 October 2003, C-267/06, Tadao Maruko v Versorgungsanstalt der deutschen Bühnen, C-353/06, Stefan Grunkin and Dorothee Regina Paul. In the interpretative judgment, the GAAC argued that in these judgments the ECJ took into account "the fundamental importance of the institution of marriage and the will of a number of Member States to continue to adhere to the understanding of this institution as a union between a man and a woman" and, according to the SCC, the ECJ drew attention to the fact that "under Article 4(2) TFEU, the Union respects the national identities of the Member States inherent in their fundamental political and constitutional structures.
Although Member States may invoke their national and constitutional identity, guaranteed to them precisely by Article 4(2) TFEU, the ECJ has repeatedly emphasised and this is explicitly underlined in the judgment in Case C-490/20. V.M.A. v. Stolichnaya Municipality, Pancharevo District, which the judges of the ECJ conveniently omitted, that the concept of national identity cannot serve as a justification for derogating from fundamental freedoms guaranteed by EU law, and that this concept should be interpreted strictly and with scrutiny by the EU institutions. For national identity to be used to derogate from rights guaranteed by EU law, there must be a genuine and sufficiently serious threat to a fundamental public interest, and it is incumbent on the Member State invoking its national and constitutional identity and the protection of the public interest to demonstrate that there is a sufficiently serious threat to justify the restriction of rights fundamental to the Union - Case C-438/14.
Undoubtedly, this interpretive decision of the SCC will have consequences on the right of trans people in Bulgaria to self-determination and their access to justice. Undoubtedly, the right to have one's gender legally affirmed will be restricted. There are a number of question marks that this decision creates, namely:
What will happen to the entered into force decisions on which trans persons have not yet changed their documents?
What will happen when the legal gender reassignment case concerns cross-border cases which also involve the rights of these persons guaranteed by Article 21 TFEU and Directive 2004/38/EC?
What will happen to the implementation of the judgments of the ECtHR against Bulgaria in trans cases?
No matter how many judges try to restrict the basic rights of LGBTI people in Bulgaria, no matter how much they try to undermine and deny the right to private and family life, as well as the right to human dignity, LGBTI people are here and it is only a matter of time for this fight to be won! Because trying to deny a person's right to live is a losing battle!