Lawyer Natasha Dobreva, representing the claimant in the current ECHR case Y.T. v. Bulgaria, gave an additional statement, in which she called the attention of the ECHR to the latest decision of the Constitutional Court regarding the definition of gender. She asks for the ECHR to include it in its analysis for its future ruling in the case. Lawyer Dobreva cited the following worrying motives of the Constitutional Court, which directly affect the rights of transsexual people in Bulgaria:
“The term “gender” is used by the constitutional legislator in the meaning of a unity of the biologically determined and the socially constructed. The social dimension in the Constitution does not create a social gender, independent of the biological sex, as provided in the Convention. … The requirements in art. 4, § 3 of the Convention would require for certain procedures to be created in the Republic of Bulgaria, which would ensure the legal recognition of a gender, different from the biological one, which would be contrary to the Constitution.”
In the opinion of lawyer Dobreva, this ruling will have essential, negative legal consequences on the rights of transsexual people in Bulgaria. According to art. 280, par. 1, p. 2 of the CCP (Code of Civil Procedure), judges are required to take into account the decisions of the Constitutional Court, otherwise, their rulings are subject to cancellation by the Supreme Court of Cassation. Therefore, the new ruling creates a legal prerequisite for a future wave of systematic refusals of sex change applications with the reason for that being that self-determination and social roles cannot be looked at separately from the physical features of a person, as per the decision of the majority of constitutional judges.
The decision of the Constitutional court also broke the expectations that, following a positive ruling by the ECHR in Y.T. v. Bulgaria, the Bulgarian government would have to implement a law on sex changes, in accordance with the rule of international law. According to our Constitution, international law takes precedence over national law, but the Constitution takes precedence over international law, “the opposite may bring negative consequences – such as prevention of the implementation of constitutional acts by international laws not in accordance to said acts” (Decision № 4, 1.04.1999 of the Constitutional Court of the Republic of Bulgaria, constitutional case № 31/1998)
We would like to remind you that the complaint of Y. T. was filed in the ECHR on 12th July 2016, because of the violated right of respect of personal life, due to the refusal of the Stara Zagora Regional Court to approve a sex change application. This is the first complaint against Bulgaria, filed by a transsexual person and it attracted the attention of 2 Bulgarian and 2 foreign NGOs, which asked of the ECHR to issue statements in support of the claimant. In June 2017 the last statements issued by all parties were exchanged and the ruling of the Court has been expected since then.
Sofia, August 22, 2018