Fights over gender identity have preoccupied American politicians in recent years. The dialogue surrounding these issues has not always been civil and productive. Too often, voices with incendiary positions have been rewarded with the most attention. Help comes from what might seem, on first sight, like an unlikely source: private international law, or, as more commonly called stateside, conflict of laws.
In “Mirin” and Beyond, Susanne Lilian Gössl provides an account of how European legal systems deal with situations where different sovereigns have different or even clashing views on gender determination and change, including binary and non-binary approaches. Some countries use self-declaration (with more or fewer administrative requirements); some use biological sex at birth; some allow for non-binary gender options; others allow for only two genders. Imagine, for example, a person who is a national of Country A, gender transitioned in Country B, and resides in Country C. Which country governs that person’s status? How can and should a country deal with a gender determination of another country that conflicts with its views of if/when/how somebody might transition to another gender?
Gössl’s answers these questions in three parts. The first part explores how conflict-of-laws methodologies of different European countries select applicable law for gender determinations. Some countries (e.g. Belgium, France, Spain) treat gender allocation questions as a personal status question, mainly determined by nationality. Other countries (e.g. Ireland, Iceland) use lex fori or (e.g. Switzerland) utilize the law of the place of residence as the primary consideration. Finally, some countries (e.g. Germany) combine different considerations, for example nationality with limited party autonomy elements.
The second part of the article examines when and how countries recognize the gender determinations of other countries. The most restrictive frameworks accept foreign status determinations only when they meet the requirements of the country’s domestic rules. Other countries recognize foreign gender determinations under broad or narrow models of what counts as a “foreign judgment.” For example, Ireland recognizes a foreign registration of a sex change in a range of circumstances. Crucially, each country must determine the role of public policy in its recognition analysis. Most countries recognize foreign judgments only if they do not violate the public policy of the recognizing state. Each country thus must determine if, when, and how foreign status determinations related to gender and sex might violate local public policy. As might be expected, this remains an unsettled question.
The third part of the article explores the Mirin case, a 2024 decision of the Court of Justice of the European Union. Mirin examines the interaction of European Union primary law and human rights law and the responsibility of EU member states to facilitate the recognition of foreign gender determinations. Leaning on the importance of free movement of EU citizens within the EU, the court argued for the enhanced portability of such status determinations and limited national public policy exemptions to recognition. Gössl’s article explores how this decision strengthens the position of individuals who change gender identities but also creates political friction among EU Member states.
The law in this space, even limited to Europe, is varied and nuanced and beyond the scope of one article. Gössl’s article shines in introducing non-experts to this topic and making a broad body of European law accessible to non-European scholars. For somebody like me, it is easy to get caught up in the ample supply of US law review articles that tend to focus on domestic affairs. As Gössl’s article reminds us, there is much to learn from how other legal systems approach difficult questions.
Of course, the EU and the US differ in many ways. But Gössl’s article provides an important lesson about pedagogy—we need tools to help us think about how to engage with others who have fundamentally different views on important, controversial, and unavoidable topics. Conflict-of-laws doctrines from all corners of the world remind us that we have options beyond capitulation or angry opposition. Even views that one might regard as deeply flawed or dangerous can be processed and analyzed through conflict-of-laws frameworks that help us negotiate, in a principled manner, when to hold the line and when to accept differences.
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