Rail firms can’t demand to know customer’s gender, top EU court rules

Following a landmark ruling from the European Court of Justice (ECJ), a French rail company cannot make it mandatory for customers to share their gender markers in order to buy a train ticket.

The judgement is likely to have a knock-on effect for all the other states in the European Union.

The case was brought in 2021 by the Mousse Association, a French LGBTQ+ advocacy organisation, against France’s state-owned railway company SNCF and its mandated collection of gender-related information.

The case focused on SNCF’s practice of forcing passengers to choose between the civil titles of “Mr” or “Ms” when buying tickets, with no chance to not give an answer or choose a gender-neutral option.

Mousse alleged it was discriminatory to transgender and non-binary people, and that collecting gender-identity data when buying train tickets contravened requirements under General Data Protection Regulation (GDPR) to minimise data retention.

The SNFC and French data protection watchdog NCIL argued “the processing of data relating to civility [is] considered necessary for the purposes of the legitimate interests”.

Judges in Luxembourg ruled in Mousse’s favour, saying that “personalisation of commercial communication, based on a presumed gender identity based on civility, does not appear to be objectively indispensable or essential in order to enable the correct performance of the contract concerned”.

The judges added that a “practicable and less intrusive solution” for companies could be to use “generic, inclusive polite phrases” to address travellers.

Mousse’s legal representative, Etienne Deshoulières, said: “The CJEU’s decision marks a significant shift in the relationship between the state and citizens.

“Previously, the state ‘owned’ the data in civil-status records and prohibited people from modifying that data, except in exceptional circumstances. Now, each citizen ‘owns’ their personal data and grants the state permission to process it within the limits set by the GDPR.

“The binary distinction of gender under the law has long been the cornerstone of the system that discriminates against sexual and gender minorities. If this legal binary no longer exists, then a broad array of legal discriminations disappears. It would represent the culmination of decades of advocacy for LGBT+ rights.”

Richard Köhler, an advisor for Transgender Europe, said about “sixty-five per cent of trans people in Europe identify as non-binary” and are “forced to navigate systems that don’t match their identity”.

He went on to say: “This case signals progress: less paperwork, fewer binary boxes and a future where EU law finally recognises and protects non-binary and trans lives. The next generation deserves nothing less.”

Meanwhile, Marie-Hélène Ludwig, ILGA-Europe’s senior strategic litigation officer, said: “Today’s ruling is crucial in putting an end to the discrimination on the grounds of gender identity faced by non-binary persons and all who do not identify within the gender binary, and who are forced to choose in their day-to-day lives between two options that do not correspond to their identity.

“This judgement will have far-reaching effects, as it clearly states that collecting gender markers when it is not strictly needed is not only unlawful but also potentially discriminatory.”

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