We are pleased to inform the public of an advancement in the human rights of queer and trans persons in the European Union through yet another judgment of the Court of Justice of the EU (case C-769/22) against Hungary, concerning Hungary’s notorious anti-LGBT propaganda law. The judgment has positive implications for the protection of LGBTI persons’ rights under EU law at the highest level, across all areas, as it has for the first time established a violation of Article 2 of the Treaty on European Union (TEU), finding that the violations of EU law through this anti-LGBTI propaganda law result from a horizontal discriminatory approach towards LGBTI persons. This judgment has direct implications for Montenegro as well, which, as a country in the process of EU accession, is obliged to align its legislation with the EU acquis.

This judgment also has implications for legal gender recognition, particularly given that the Court found that Hungary had violated Article 2 of the Treaty on European Union by discriminating against persons on the basis of sexual orientation and gender identity. This marks the first case law of the Court of Justice of the EU concerning a violation of the EU’s foundational values, and complements the Court’s existing case law on the protection of transgender persons from discrimination, elevating it to the level of the Treaty. As part of its analysis, the Court refers to CJEU cases (Mirin, Mousse, Deldits, and Shipova) concerning legal gender recognition, emphasising the right to private and family life and the values of respect for human dignity and equality. These judgments are summarised in the following rulings: legal gender recognition must be accessible without invasive requirements (Deldits case, Hungary); EU member states must mutually recognise gender recognition decisions (Mirin case, Romania); and gendered titles such as “Mr” or “Ms” must be used only when strictly necessary, protecting non-binary persons from discrimination (Mousse case, France).

Of particular significance is the most recent Shipova case (Case C-43/24), which expands the CJEU’s case law on legal gender recognition. The Court ruled that member state legislation which does not permit legal gender recognition for nationals who have exercised their right to free movement and residence in another member state is contrary to EU free movement law (Article 21 TFEU and Article 4(3) of Directive 2004/38/EC), read in light of Article 7 of the Charter of Fundamental Rights. The Court also ruled that “tolerating discrimination based on the distinction between biological sex and gender identity would, in relation to a transgender person, amount to a failure to respect the dignity and freedom to which that person is entitled and which the Court has a duty to protect.” In its reasoning, the Court implies that EU member states must ensure legal gender recognition from the outset, so that transgender persons do not encounter difficulties when initially crossing borders. As a result, it is clear to us that the legal consensus in this area is shifting towards legal gender recognition being required of all EU member states, not only Bulgaria.

In light of the acceleration of Montenegro’s accession negotiations with the European Union, and the welcome news of the formation of an ad hoc group to draft the accession treaty, we are compelled to draw attention to the fact that Montenegro, as a future EU member state, is obliged to align its legislation and implementation mechanisms with the EU acquis. As the case law of the Court of Justice of the EU forms part of that acquis, the implications of the aforementioned judgments for Montenegro’s membership are clear. Montenegro remains one of only 9 Council of Europe countries that still require the inhumane and invasive process of forced sterilisation as a condition for transgender persons to obtain documents that correspond to their identity. In order to eliminate this practice, and for Montenegro to also implement the case law of the European Court of Human Rights (which constitutes a closing benchmark under Chapter 23) — which as far back as 2017 identified this practice as a violation of the right to private and family life — it is necessary to adopt the Law on Legal Gender Recognition based on self-determination, which is scheduled for adoption by the end of the second quarter of 2026.

Given the continued blocking of this legislative solution — which has long been finalised, has received all necessary approvals from the relevant ministries, has received a positive opinion from the European Commission, and is aligned with both international law and the national legal system — we urge the ruling majority, and in particular the Ministry of Human and Minority Rights as the proposing authority, to act responsibly, end the blockade of this law, and submit it to the Government for adoption and subsequently to the Parliament for enactment. Transgender persons are the only community in Montenegro who continue to be subjected to forced sterilisation due to the irresponsibility of the political elite, leaving our rights gravely violated and excluding us from the basic precondition for participation in all spheres of life, including the labour market, in which it is impossible to participate without adequate documentation. Therefore, after nearly a decade of patience and cooperation, participation in working groups, and compromise in pursuit of a minimum acceptable legislative solution, we demand that the Law on Self-Determination be placed on the agenda and urgently adopted — so that we are not compelled to seek justice through legal proceedings.