The applicant was registered as female at birth, but has always identified himself as male. He lived and appeared as a man in all areas of life, and had begun hormonal treatment to transition. The applicant filed a request with the Civil Status Office to change his name and gender marker to reflect his male gender identity, but the request was rejected. He appealed the decision to the Civil Registration Agency, which rejected the appeal on the grounds that the applicant provided no evidence that his current name prevented his integration in society, and no medical report supporting his request for a change of his gender marker. The applicant filed a claim with the Basic Court, and, only one week later and before a decision was rendered, referred the matter to the Constitutional Court. The applicant alleged the Civil Registration Agency’s decision violated his fundamental rights and freedoms, guaranteed by Articles 23 (Human Dignity), 24 (Equality Before the Law), and 36 (Right to Privacy) of the Constitution of Kosovo, and Article 8 (Right to Respect for Private and Family Life) of the European Convention on Human Rights. The applicant requested to be exempted from the legal obligation to exhaust all legal remedies before seeking a constitutional review on the grounds that the regular courts’ legal remedy would not be effective or sufficiently certain because of his special circumstances and the length of the proceedings. The Constitutional Court surveyed foreign constitutional courts via the Venice Commission for their respective relevant case law, confirming the general requirement for an applicant to exhaust his/her legal remedies before seeking constitutional review. The court noted the existence of a very similar and recently decided case, in which a person sued the Civil Status Office and Civil Registration Agency for their refusal to grant his request to change his name and gender marker from female to male after a successful gender reassignment surgery. The Basic Court ruled for the applicant and ordered the changes made, and the decision was upheld by the Court of Appeals. The Constitutional Court therefore determined that the regular courts could furnish an effective and sufficiently certain legal remedy for the applicant. Moreover, the court noted that the applicant was not seeking review of an already lengthy court proceeding, but merely of the possibility of one, and in any event the Basic Court and Court of Appeals disposed of the above mentioned precedent in reasonable time. Accordingly, the Constitutional Court ruled the applicant’s referral inadmissible because it was premature. (Also available in Srpski and English.)
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