Promising legal framework: how GDPR can reshape the right to gender identity in the EU

The Court of Justice of the European Union (CJEU) has addressed gender identity protection in several rulings, primarily within the context of employment and anti-discrimination law. However, the recent Deldits case (C-247/23) marks a significant development in the legal framework by introducing a new dimension: the intersection of gender identity with data protection - under the General Data Protection Regulation 2016/679 (GDPR) - and immigration law, particularly the right to asylum. The paper adopts an intersectional feminist approach (Crenshaw, 1989, 1991; Collins and Bilge, 2016), aiming to uncover the overlapping structures of marginalisation that affect trans* (Halberstam, 2018) people. Inevitably, this will highlight other elements that are often rendered invisible, while amplifying the voices of various intersecting grassroots demands. The core analysis focuses on how the GDPR was interpreted in Deldits to protect the personal data directly related to self-identified gender. Drawing on Article 16 GDPR, which guarantees the rectification of inaccurate data “without undue delay”, the paper explores how this legal tool may be leveraged to support legal gender recognition (LGR) across EU Member States. Eventually, the analysis will engage with selected LGR regulations and practices (especially judicial regulations, as the one applicable in Italy), assessing them against the framework established in Deldits and relevant GDPR provisions. It will highlight both opportunities for harmonisation and existing limitations - for instance, the persistent delays in accessing LGR in countries applying judicial based procedures. The paper further situates the Deldits decision within the broader jurisprudential landscape by comparing it with earlier CJEU rulings and examining its resonance with the European Court of Human Rights’ case law. The aim is to construct a broader, yet coherent, understanding of current LGR pathways and their respective effectiveness. Ultimately, this contribution explores how and to what extent a ruling such as Deldits can challenge the medicalisation of trans bodies, reinforce protections against gender stereotypes and gender binarism, and offer new legal avenues. While the GDPR was not originally designed for this purpose, it may nonetheless provide a promising legal mechanism to affirm and safeguard the right to gender identity in the EU.