Mutatis mutandis - Accommodation of the right to change of transgender persons in the European Union and national law

Abstract

This thesis analysed offered protections to transgender persons on the EU primary, secondary and CJEU case-law level, and in the dimension of the national law of the EU Member States. I propose a departure from the deterministic and sex-essentialist view of the law, instead formulating based on existential philosophy a new theoretical lens – the Right to Change. The main research questions are thus how and why the EU law and Member States’ law accommodate the Right to Change of transgender persons through extending protections based on transition, gender expression/identity. The critical review of relevant legislation was performed, while Member States’ laws were analysed based on 22 indicators acquired through Trans Rights Map 2023 compiled by Transgender Europe as a proxy. The results indicate that the shift of theoretical lens uncovers inherent weakness in the EU law and the CJEU case-law, as its approach is relatively disjointed, offering only partial coverage through sex as a protected ground. Member States at large do fulfil minimal requirements, yet their view of transgender experiences remains heavily medicalised and, due to lack of a unified signal from the EU, voluntary extension beyond the primary need is relatively uncommon.