The decision of the Constitutional Court does not stop the path of trans people to administrative change of their gender

Apply for Our Second Digital Indie Lab
25.10.2021
The S.U.P.E.R. project – part of the big winners in the first edition of Digital Indie Lab
03.11.2021

Why Are We Not Surprisеd by the Decision of the Constitutional Court?

Yesterday the long-awaited decision of the Constitutional Court, answering the question of the Civil Chamber of the Supreme Court of Cassation, was announced. The question was How should the term "sex" used in the Constitution be understood, and does it have a meaning other than biological sex? The decision - more than 15,000 words or 47 pages long - ends with one general sentence: According to the Constitution, the term "sex" should be understood only in its biological sense. Naturally, this was the headline with which the majority of the media covered this news.

What does the decision say?

After listing and summarizing the opinions of experts, institutions, organizations, etc. – sought by the Court and sent additionally and voluntarily – the judgment clearly emphasizes that „the subject-matter of the present case requires the Court [...] to give a binding interpretation of the Constitution, but not to issue binding instructions to individual authorities concerning the settlement of the legal situation of transsexual people (i.e. persons whose gender identity does not correspond to the biologically defined sex in fertilization) and, in particular, of the legislature on the establishment of certain legislation recognizing their right to sexual self-determination, and of the judiciary on the due course of ruling on requests from those persons to respect certain legal consequences arising from such self-determination.”

The Court also drew clear attention to the case law of the European Court of Human Rights (ECtHR) and noted as a precautionary measure that “the grounds for condemning the member States of the Council of Europe for violating Art. 8 The ECHR specifically in relation to the rights of transgender people is the lack of national legislation”. The Court concludes that this practice and the pressure of such cases “exclusively engage the legislator in the face of the National Assembly” and repeatedly cites decisions in which the state has an obligation to “introduce an effective and accessible procedure with clearly defined conditions” guaranteeing the right of transgender people to change gender in civil status registers. All these arguments repeatedly wash the hands of the Court with regard to specific legislative, administrative, etc. procedures related to administrative gender reassignment, insofar as they do not fall within its competence in practice. It would be extremely surprising for the Constitutional Court of a conservative state like Bulgaria, interpreting this particular issue in relation to the Constitution, to take a different position, especially on the issue of the legislative gap with regard to transgender people.

Whether the members of the Court really believe that one day Parliament may decide to change the procedural order or whether this is a move to drown this issue in much more urgent, urgent and easy legislative changes, we can only guess.

The role of the Church

What follows after this part of the judgment, however, and the space and depth set aside for this argument, show the extremely conservative attitude of the Court's composition, as well as the easiness of choice to meet the expectations of the massively conservative public opinion on the subject.

It is worth emphasizing that the text that follows regarding the role of religion, the Church, spiritual values and Bulgarian national identity is a consciously chosen aspect, which is not just mentioned, but which reaches in its study to the early Middle Ages, the Exarchate Statute of The Bulgarian Orthodox Church and the Ottoman Empire. The court, quoting texts from the 1991 Constitution, once again emphasizes the binary of marriage, the uniqueness of motherhood and emphasizes that no matter how much the state has separated from the Church, our society has not evolved that much to surpass the medieval historical accumulations and this is a reason for the court to adhere to the traditional Bulgarian values in this case.

“… The Court finds that its approach in interpreting the Constitution in the present case should also be value-normative, in which the law as a system of universal rules of conduct cannot be considered without taking into account the established in society and relevant to the subject of interpretation of values deriving from other normative systems, such as religion, morals and customs.”

Although the composition of the Court skillfully hides behind the values in question, it does not deny the possibility that it will evolve over time, as well as the law as such – but for now this interpretation corresponds to our described religious-cultural-value identity, and evolution will occur when its time has come.

There are several key aspects behind all 47 pages of the Court's judgment:

- Explicit interpretation of the concept of sex only as it is defined in the Constitution - namely biological;

- Reaffirmation by the Court of the extremely conservative Bulgarian understanding of the family, parenthood and gender;

- The legislature has its independence in terms of changing the legislation – when this will happen, however, is not the job of the Constitutional Court;

- Panic over the idea that transgender people can be parents, be in a long-standing marriage, which after the change of gender may be same-sex, as well as all the legal consequences that could result from all this;

- Trans people will be able to continue to apply for gender reassignment, but judges who have already had stereotypes on the subject, will be extremely relieved by the decision of the Constitutional Court;

In conclusion, it is worth mentioning that Judge Filip Dimitrov has a special opinion on the case, published on the website of the Constitutional Court.

What is left for us, the organizations working to protect the rights of LGBTI people in Bulgaria? To continue to provide support and protection to trans, non-binary and intersex people – in psychological, health, legal and purely human aspects; the lawyers in our teams continue to apply for gender reassignment in front of the court, and we must continue to remember that laws, regulations, rules and procedures do not depend on the Constitutional Court, but on the legislature that we elect. The practice of the Constitutional Court is not embedded in stone and can be changed in future constitutional cases, in case of change of the composition of the Constitutional Court, by consensus in the medical guild, etc.

Single Step's team