The Court established: there is a lack of conformity with the Fundamental Law manifested in an omission, as the legislator failed to regulate the procedure of the change of surname in the case of lawfully settled non-Hungarian citizens resulting in a discriminative situation.

The petitioner of the constitutional complaint had been subject to persecution in his home country, therefore he received refugee status in Hungary. The petitioner filed an application for gender reassignment to the Immigration and Citizenship Office, since his official documents identify him as female, but this description does not match his real gender identity. The Office rejected the application by arguing that gender reassignment should be registered by the superintendent registrar in charge in the certificate of registration of birth, but in the present case it is not possible to do so as the petitioner does not have a certificate of registration of birth in Hungary. The non-Hungarian citizen petitioner filed an application for review againts the decision, but the court rejected it, holding that there was no statutory regulation determining the authority empowered to make a decision on the merits. Then the petitioner turned to the Constitutional Court.

The Constitutional Court rejected the constitutional complaint. The courts may not act directly on the basis of the Fundamental Law; they need to interpret and apply the statutory regulations in accordance with the Fundamental Law: if more than one interpretation can be attributed to a statutory regulation, the judge must select the one, which is in compliance with the Fundamental Law.  However, the present case could not be judged upon on the basis of interpreting the statutory regulations as there was no regulation in the legal system that could have been interpreted by the judge. The Constitutional Court therefore established, acting ex officio, the existence of a lack of conformity with the Fundamental Law manifested in an omission and called upon the National Assembly to regulate, by 31 December 2018, the procedure of the change of surname of lawfully settled non-Hungarian citizens. The Court holds that the change of surname is auxiliary to gender reassignment and the state must provide for a regulation granting discrimination-free registration in the registries. At present, the option of the change of surname coming along with gender reassignment is only given for Hungarian citizens, which means that the legislator made a discriminative differentiation between Hungarian and non-Hungarian citizens in a manner violating the right to human dignity.

In the legal environment to be adopted in the future, the petitioner shall have the opportunity to resubmit his application.

The full text of the decision is available on the Constitutional Court’s website (alkotmanybirosag.hu). Judges dr. Tamás Sulyok and dr. Mária Szívós attached concurring opinions to the decision.