Last month, the first gender-neutral passport
containing the gender designation X was issued by the Netherlands to a 57-year old who identifies as intersex, as does 4% of the Dutch population.
Ten years after the Dutch Supreme Court rejected a similar claim in a different case, a lower court
decided this summer that in light of recent societal developments, a refusal to register the applicant as gender neutral would violate the right to private life and self-determination and the person’s personal autonomy.
The gender-neutral passport preceded another victory for LGBT rights this summer in the decision of the Court of Justice of the European Union in Coman
. Family law is in many respects comparable to nationality law in that it remains part of the nation state’s reserved domain. In Europe, EU member states have not transferred any competences in these fields to the EU. The controversial nature of same-sex marriages in Europe also meant that the key document for the EU’s free movement regime, EU Directive 2004/38
, also known as the ‘Citizens’ Rights Directive’, does not give a definition of the notion of ‘spouse’ that would include same-sex partners.
For a long time the non-recognition by some countries of same-sex marriages concluded in another country has been a hindrance to the mobility of the gay community. In the Coman judgment, described as a landmark ruling of great constitutional importance
, ‘the Court of Justice ruled that the term “spouse” for the purpose of the grant of family reunification rights under EU free movement law, includes the same-sex spouse of a Union citizen who has moved between Member States. This means that in such situations, the Union citizen can require the State of destination to admit within its territory his/her same-sex spouse, irrespective of whether that State has opened marriage to same-sex couples within its territory’.