The Court of Justice and gender recognition: A possibility for an expansive interpretation?

Abstract

The case-law of the Court of Justice of the European Union on sex non-discrimination and trans rights reveals that, over time, the principle of equal treatment has led to forms of gender recognition, clearly limited to the scope of EU law. The Court has ruled that lack of identity recognition may, if conditions are met, infringe on the principle of equal treatment. Focusing on several textual and contextual aspects of the Court's decisions, the article explores the possibility of an expansive reading of this case-law beyond the boundaries of the medicalised binary. Ultimately, the potential of the doctrine of the Court of Justice for the advancement of trans fundamental rights in Europe is discussed, in order to stimulate the debate on an important and timely topic.