Protection of Private Life versus Administrative Rigidity. Romanian Courts Directly Apply ECtHR Case Law in Matters of Gender Identity
In the absence of clear and coherent domestic regulations governing the procedure for the legal recognition of gender identity, Romanian courts are increasingly called upon to strike a delicate balance between the protection of an individual’s private life and the rigidity of the State’s administrative mechanisms. In this context, the case law of the European Court of Human Rights (ECtHR) plays a decisive role, being applied directly as a normative and interpretative benchmark.
A recent decision of a Romanian court confirms this trend, reaffirming that the right to respect for private life, guaranteed by Article 8 of the European Convention on Human Rights, also includes the individual’s right to legal recognition of their gender identity, without such recognition being conditional upon surgical interventions, sterilisation, or other irreversible medical treatments.
ECtHR Case Law – a Mandatory Standard for National Courts
The court grounded its decision in a thorough analysis of ECtHR case law, with reference to cases such as A.P., Garçon and Nicot v. France, S.V. v. Italy, X v. the former Yugoslav Republic of Macedonia, X and Y v. Romania, emphasising that:
- the legal recognition of gender identity is a matter of personal self-determination;
- the State has positive obligations to establish procedures that are swift, accessible and foreseeable;
- conditioning the recognition of gender identity on excessive medical requirements or on the absence of clear procedures amounts to an unjustified interference with private life.
The Strasbourg Court has consistently sanctioned situations in which individuals are kept in a state of legal uncertainty, with long-term negative effects on their dignity, mental health and social integration.
Romanian Law: Legislative Vacuum and Inconsistent Practice
Under Romanian law, the normative framework remains fragmented. Law no. 119/1996 on civil status records allows for amendments regarding sex to be made in civil status documents only on the basis of a final court decision, without regulating the conditions, procedure or standards of assessment.
This legislative gap places a significant responsibility on the courts, namely to develop legal solutions through interpretation, in full compliance with the European Convention on Human Rights and the case law of the Constitutional Court and European courts.
Administrative rigidity, manifested through automatic refusals or restrictive interpretations of legal provisions, cannot prevail over fundamental rights, particularly where identity, dignity and private life are at stake.
A Highly Specialised Procedure Requiring Maximum Legal Rigor
Practical experience shows that such disputes are among the most technical and sensitive procedures in the field of civil law and human rights. The success of such proceedings depends on strict compliance with procedural rules, a solid evidentiary framework and legal arguments firmly grounded both in domestic law and ECtHR standards.
Lawyers Cristina Cuibuș and Ștefan Bălan, members of Trifan Cuibuș Bălan SCA – Cluj Bar, have assisted numerous clients over time in proceedings concerning the legal recognition of gender identity, being among the few lawyers in Romania with consistent experience in this highly specialised field. The accumulated practice highlights the importance of a professional and rigorous approach at every stage, in an area where any procedural error may lead to the dismissal of the claim or to unjustified delays.
Conclusion
Recent decisions of Romanian courts indicate an increasingly clear alignment with ECtHR standards, despite the absence of detailed domestic regulation. The protection of private life can no longer be sacrificed in the name of administrative formalism, and the legal recognition of gender identity is emerging as a fundamental right that imposes on the State an obligation to act, not to delay.
Until coherent legislative intervention is adopted, courts remain the effective guarantor of respect for human dignity and of the supremacy of the European Convention on Human Rights within the domestic legal order.
Judicial practice in recent years demonstrates that the issue of legal recognition of gender identity is not one of administrative discretion, but rather one of effective protection of fundamental rights. The rigidity of civil status authorities, compounded by the absence of clear procedures in domestic law, unjustifiably shifts the burden of an onerous process onto both the courts and the individuals concerned, despite the clarity and consistency of European standards.
In the absence of explicit regulation, the role of the lawyer becomes essential. These procedures are neither simple nor routine; they require an in-depth understanding of ECtHR jurisprudence, domestic civil law and administrative practice, as well as an absolutely necessary procedural rigor. Experience shows that excessive formalism or a superficial approach may irreversibly compromise the chances of a legitimate claim.
From this perspective, we consider that court decisions directly applying ECtHR case law represent not only a protection of private life, but also a clear message to the legislator: a legislative vacuum cannot justify keeping individuals in a state of legal uncertainty. Respect for human dignity and the right to identity requires the existence of clear, foreseeable and accessible procedures, and until such procedures are adopted, courts remain the ultimate guarantor of fundamental rights.
Lawyer Cristina Cuibuș
Lawyer Ștefan Bălan
Trifan Cuibuș Bălan SCA – Baroul Cluj