Press Release – Paris, January 9, 2025
On Thursday, January 9, 2025, the Court of Justice of the European Union (CJEU) handed down a historic decision on the recognition of sexual and gender minority rights. This ruling has immediate direct effect by making it optional to check either “Mr.” or “Ms.” on forms. It also paves the way for major advances in LGBT+ rights, such as the recognition of neutral sex and same-sex marriage in all 27 Member States of the European Union.
Discrimination Against Transgender, Intersex, and Non-Binary Persons
The action brought by the association Mousse was based on the initial observation that transgender, non-binary, and intersex individuals have been subjected to discrimination at SNCF (the French national railway company).
Transgender individuals are those whose gender identity does not match the sex assigned to them at birth. According to an OECD study, transgender people represent between 0.1% and 0.3% of the population. During their gender transition, transgender individuals often hold identity documents that do not align with the gender in which they present themselves. This discrepancy has led on multiple occasions to transgender passengers being removed from trains during ticket inspections by SNCF staff. For instance, a passenger traveling from Lyon to Paris was once fined 227 euros because the gender appearing on her national ID card and train ticket did not match her physical appearance.
Intersex individuals are those who are biologically neither fully “male” nor fully “female” human beings. There is a broad spectrum of intersex conditions. According to the Office of the United Nations High Commissioner for Human Rights, intersex individuals represent approximately 1.7% of the population. Non-binary individuals are those who do not identify with the binary categorization of gender (female/male). The number of people in France who identify as non-binary is increasingly significant. An IFOP poll for Marianne found that 22% of 18- to 30-year-olds identify as non-binary. According to a YouGov poll for 20 Minutes, 6% of French people identify as non-binary and 36% believe that the State should recognize an “other” gender on civil-status documents. Intersex and non-binary persons are still, to this day, forced to choose between “Mr.” or “Ms.” when purchasing train tickets from SNCF, even though these binary categories do not reflect their gender identity. The repeated, daily imposition of binary distinctions in commercial and administrative forms fosters a feeling of exclusion.
Initial Complaint Against SNCF Before the CNIL
Acting on behalf of 64 individuals, Mousse filed a complaint on January 12, 2021, with the French Data Protection Authority (CNIL), arguing that SNCF was in violation of two fundamental principles of the General Data Protection Regulation (GDPR):
Principle of Data Minimization
The principle of data minimization requires that the personal data collected be limited to what is strictly necessary. In commercial matters, this principle means that businesses cannot compel their customers to provide personal data that is unnecessary for delivering the service. For example, a website may not require an internet user to provide their date of birth in order to purchase a concert ticket. In Mousse’s view, this principle should apply to gender identity data: since SNCF does not need to know a passenger’s gender identity to provide transportation, it cannot oblige customers to check either “Mr.” or “Ms.” when buying a train ticket.
Despite several requests made by Mousse before filing a complaint, SNCF flatly refused to change its forms. This stance was more questionable given that other transport operators, such as RATP and Deutsche Bahn, had recently made the provision of gender identity optional. Furthermore, SNCF’s approach was baffling, considering that it is still possible today to purchase a train ticket in person at a station without indicating one’s gender identity.
Principle of Accuracy
The principle of accuracy requires organizations to collect accurate data and keep it up to date. For example, if a person changes their address, they can ask organizations to update their records to reflect the new address. Once again, Mousse claimed that SNCF violated the principle of accuracy by collecting inaccurate data on the gender identity of intersex and non-binary persons.
By compelling every individual to choose “Mr.” or “Ms.,” SNCF effectively confines the diversity of genders within a binary framework. This data collection may therefore be inaccurate for several reasons: objectively, intersex individuals are neither biologically “male” nor “female”; subjectively, non-binary individuals reject gender assignments such as “Mr.” or “Ms.”; and, legally, some citizens of the Netherlands, Germany, Austria, or Malta have already opted not to have a sex designation in their civil-status documents. For all these people, collecting gender identity data via “Mr.” or “Ms.” is inaccurate.
Adverse Decision by the CNIL
In a decision dated March 23, 2021, the CNIL found Mousse’s complaint unfounded:
- On the principle of minimization: the decision states that “economic operators or public authorities may, in their dealings with natural persons, include a title of address rather than limiting themselves to first and last names only. Although it is indeed possible to designate the recipient without indicating a title, the use of such titles reflects common practice in civil, commercial, and administrative correspondence, such that processing this data may be deemed necessary by the data controller, whose purpose is not only to identify the recipient precisely but also to address them in accordance with prevailing custom.”
- On the principle of accuracy: the CNIL found that “the data controller enjoys a degree of discretion in choosing which titles of address to use. To date, no decision by the Commission nor any other data protection authority in Europe, to my knowledge, has found the use of Mister/Madam titles to be contrary to the principle of data accuracy. Of course, such use must in no way amount to discrimination.”
Referral by the Conseil d’État to the CJEU
Mousse then challenged the legality of this CNIL decision before the Conseil d’État (the highest administrative court in France), relying on the General Data Protection Regulation (GDPR). This regulation governs data protection law uniformly across the EU’s 27 Member States and is directly applicable throughout the EU.
European Union treaties establish a specific mechanism whenever an EU legal provision raises an interpretative question: the preliminary reference procedure. This mechanism allows citizens to request that national courts refer the case to the CJEU for a ruling on how to interpret EU law.
In Mousse v. SNCF, Mousse argued that the GDPR presented interpretative difficulties and asked the Conseil d’État to make a preliminary reference to the CJEU on the following two questions:
- Must the principle of data minimization be interpreted to prohibit the publisher of a digital service from collecting individuals’ gender identity, insofar as such data is not necessary for the provision of the service?
- Must the principle of accuracy be interpreted to mean that the publisher of a digital service offering a form that collects individuals’ gender identity must either make that data collection optional or provide a gender-neutral option?
In its decision of June 21, 2023, the Conseil d’État retained only the first question concerning the principle of data minimization and consequently decided to refer the matter to the CJEU in the following terms:
“The question whether, in assessing whether the collection of data is adequate, relevant, and limited to what is necessary within the meaning of point (c) of Article 5(1) of the GDPR and whether the processing of such data is necessary within the meaning of points (b) and (f) of Article 6(1) of the GDPR, regard may be had to common practice in civil, commercial, and administrative communications, so that the collection of data relating to customer titles of address, limited to ‘Mister’ or ‘Madam,’ may be considered lawful without the principle of data minimization standing in the way, raises a question of EU law interpretation critical to resolving the dispute before the Conseil d’État. The same goes for whether, in assessing the necessity of the mandatory collection and processing of data relating to customers’ title of address—and given that some customers believe they do not come under either title and that collecting such data is irrelevant to them—one should take into account the fact that, after providing this data to the controller in order to benefit from the service offered, those customers could exercise their right to object to its use and retention by citing their particular situation under Article 21 of the GDPR.”
This decision by the Conseil d’État already marks an important victory insofar as it recognizes that gender minorities find themselves in a “particular situation” vis-à-vis forms that require “Mr.” or “Ms.”
A Historic CJEU Ruling for Gender Minorities
In its ruling delivered on Thursday, January 9, 2025, the CJEU upheld Mousse’s arguments aimed at prohibiting the publisher of a digital service from collecting individuals’ gender identity when that data is not necessary for the provision of the service. The CJEU held that “the common practice in civil, commercial, and administrative communications” invoked by SNCF does not justify collecting data on gender identity.
This ruling is first and foremost a defeat for SNCF, the CNIL, and the French Government, which intervened in the proceedings in support of SNCF. But above all, it carries very significant practical consequences that could ultimately lead to recognition of neutral sex and same-sex marriage in all 27 EU Member States.
Consequences of the Ruling: From Amending Forms to Recognizing Neutral Sex and Same-Sex Marriage in the EU
The CJEU’s decision does not concern only SNCF’s online forms. The judgment constitutes an interpretation of the General Data Protection Regulation. It is therefore incorporated into EU law and is directly applicable in all 27 EU Member States. European citizens can invoke it before national courts, and all public and private entities are bound to comply.
In practical terms, this judgment has direct effects but also opens the door to indirect effects that herald major progress for LGBT+ rights throughout the EU.
Prohibition on Collecting Gender Identity Data
The ruling requires SNCF to amend its online forms so that choosing “Mr.” or “Ms.” is no longer mandatory when purchasing a train ticket. But this obligation extends far more broadly to all public and private entities across the European Union. As noted by the CNIL itself in the arguments it submitted to the CJEU:
“If the processing of the title of address were to be prohibited or made subject to users’ choice, any mention of ‘Ms.,’ ‘Madam,’ ‘Mr.,’ ‘Mister,’ ‘M,’ or ‘F’ would have to be removed from all everyday documents, to name but a few: criminal complaints, police reports, police or gendarmerie statements, medical prescriptions, residence permits, passports, etc. Any change to such standard practices should be introduced only through legislation.”
Businesses and government agencies in the EU’s 27 Member States must therefore revise their forms. Mousse has already identified numerous illicit forms used by the French administration, such as the contact form on the Ministry of Justice website, the online complaint form of the Ministry of the Interior, the URSSAF (the French social security organization) new-employee declaration form—and even the CNIL’s own online complaint form. A huge amount of work thus remains to be done to modify existing forms and compel recalcitrant entities to cease unlawfully collecting gender identity data. To facilitate this process, Deshoulières Avocats is making available a template of a CNIL complaint for challenging unlawful collection of gender identity data.
It is important to clarify that the CJEU’s ruling does not completely prohibit collecting gender identity data. First, if individuals choose to indicate “Mr.” or “Ms.” on an optional basis, the collection of such data is lawful. Second, in certain situations, collecting gender identity information is justified—for example, for emergency housing, to ensure compliance with rules on gender parity, or for specialized healthcare.
Neutral Sex on Civil-Status Registers in All 27 EU Member States
The GDPR applies to both the public and private sectors. All public services are subject to the GDPR, and the principles of data minimization and accuracy outlined above apply to civil-status registers as well. The samereasoningapplieshere:
- Minimization: States do not need to know our gender identity in order to provide civil-status services. This is evidenced by the fact that some European countries, such as Germany, the Netherlands, Malta, and Austria, already administer their civil-status registers without requiring their citizens to record an explicit gender identity. The mandatory recording of gender identity on civil-status registers thus constitutes a violation of the principle of data minimization.
- Accuracy: By recording binary gender identity data for all individuals, including intersex and non-binary persons, French civil-status registers collect and process inaccurate data. The mandatory recording of binary gender identity on civil-status registers therefore breaches the principle of accuracy.
Mousse intends to bring this matter before the CNIL in the coming weeks, with the aim of referring it ultimately to the CJEU via another preliminary reference. If the outcome is favorable, anyone could request the removal of all gender markers from their civil-status records (birth certificates, marriage certificates) and identity documents (ID cards, passports, driver’s licenses) in the 27 EU Member States (thus in 23 additional countries).
Same-Sex Marriage in All 27 EU Member States
Marriage is a fundamental right recognized by Article 12 of the European Convention on Human Rights and by Article 9 of the Charter of Fundamental Rights of the European Union. This right must be available to everyone, including those without a gender marker on their birth certificate or those who do not wish their gender identity data to be processed during the marriage procedure.
Once it becomes possible to marry without consideration of gender, any person should, in principle, be able to marry anyone else, including someone of the same gender. However, the recognition of a neutral gender in civil status, while opening an important legal door, will not automatically lead to the recognition of same-sex marriage in all EU member states. A complex legal battle will need to be fought, first at the European level and then within each of the 12 concerned countries – Bulgaria, Latvia, Lithuania, Poland, Romania, Slovakia, Italy, Cyprus, Croatia, Hungary, and the Czech Republic – where political, cultural, or legal resistance persists.
From a theoretical standpoint, the CJEU’s decision marks a significant shift in the relationship between the State and citizens. Previously, the State “owned” the data in civil-status records and prohibited people from modifying that data, except in exceptional circumstances. Now, each citizen “owns” their personal data and grants the State permission to process it within the limits set by the GDPR, including the principles of minimization and accuracy.
Removing any reference to sex from civil-status documents opens the possibility of considering a legal subject not defined by gender, whereas gender has traditionally been a key marker of civil identity since the French Revolution—one that underpinned many forms of discrimination, initially against women and then against all sexual and gender minorities more broadly. Allowing individuals to request removal of gender from civil-status documents would, among other things, enable non-binary and intersex persons to obtain official documents aligned with their actual gender identity, ensure equality in medically assisted procreation (PMA) for lesbians, and provide equal access to adoption for homosexual and transgender persons.
The binary distinction of gender under the law has long been the cornerstone of the system that discriminates against sexual and gender minorities. If this legal binary no longer exists, then a broad array of legal discriminations disappears. It would represent the culmination of decades of advocacy for LGBT+ rights.
PRESS CONTACT:
Étienne Deshoulières, Attorney at the Paris Bar
www.deshoulieres-avocats.com – +33 0177628203
contact@deshoulieres-avocats.com
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