Constitutional Identity and Human Rights: A Critical Examination in the Bulgarian Context

Abstract

The concept of constitutional identity was first introduced in Bulgarian Constitutional Law literature in 2017. However, following the Constitutional Courts 2018 ruling that declared the Istanbul Convention unconstitutional, this notion started to be used in civil and administrative court case law as a counterargument against human rights claims. This paper critically examines the academic and legal debates surrounding constitutional identity in Bulgaria, emphasizing how a focus on constitutional tradition in academia, combined with a judicial emphasis on traditional values, has negatively impacted protections for transgender individuals and same-sex families. As Bulgaria seeks to fulfill its commitments to the European Union and the Council of Europe, it faces the challenge of reconciling its constitutional identity with its obligation to uphold human rights. The developments in the Pancharevo administrative case and the 2023 reversal of three decades of civil law practice allowing legal gender change through judicial means raise pressing questions about whether the concept of constitutional identity has been misappropriated to justify the dehumanization of individuals with homosexual orientations and transgender identities. The anti-gender doctrine developed by the Bulgarian Constitutional Court and the related rulings of the administrative and civil courts illustrate a troubling trend in which constitutional identity is leveraged to impose restrictions on fundamental rights, particularly impacting transgender individuals and same- sex families. There is an urgent need for a more inclusive interpretation of constitutional identity in Bulgaria – one that harmonizes modern human rights principles with the nation’s historical and cultural context. Future discussions should aim to cultivate a dialogue that reconciles tradition with contemporary values, ensuring that Bulgarian constitutional identity evolves to safeguard the rights and dignity of all its citizens.