One of the projects dealing with the form of European Digital Identity Portraits provides for the anticipation of determining the sex of the user in 7 different ways. The Ordo Iuris Institute calls for amendments to be introduced to the draft regulation, which will guarantee that the solutions provided for therein do not interfere with the exclusive competence of the associate States to establish their own government on civilian position acts and sex identification.
The Ordo Iuris Institute took part in a public consultation on the European Commission's implementing Regulations, which specify the method specifications of the European Digital Identity Portfolio (EUDI). These are applications that at European Union level have services akin to those available in Polish mCitizen. These programmes will not be created at EU level, but will be the work of associate States which can either make specified an application themselves or let the 3rd organization to usage the application.
As the Institute pointed out in its earlier opinion on the subject, the usage of the application is to be entirely voluntary – it will not be possible to make access to a given public service dependent on whether individual wants to verify their identity through it, or would like to do so in any another way.
– The wrongly designed EUDI strategy can become a real threat to the privacy of EU citizens, as today's facilities can be utilized against citizens in the future. The EUDI may yet be a retention platform for full medical and banking records or a means of confirming financial operations, thus becoming a classical portfolio adapted to trading, for example, in the digital currency and another voluntary cash relief facility. This strategy can besides possibly evidence the carbon footprint of citizens, allowing restrictions linked to the overburdening of the planet – notes Dr. Łukasz Bernaciński, board associate of the Ordo Iuris Institute.
The European Commission, in implementation of the work laid down in Articles 5a (23) and 5c(6) of the Regulation of the European Parliament and of the Council on this matter, has published draft 4 implementing Regulations: the first concerns the basic functions of portfolios, the second concerns the certification by associate States of these portfolios, the 3rd concerns the notification by associate States of the Commission's adopted portfolios and, finally, the 4th concerns the recognition of the user concerned.
All these projects mainly specify certain details and technological solutions related to the European Digital Identity Wallets, not exceeding the framework of the regulation described above, which is due to their very nature as implementing regulations. The fourth, on user data, contains solutions that may rise doubts as to whether they do not undermine associate States' powers to formulate their own regulations on civilian position acts and sex identification.
In the first table of the Annex to the draft Regulation, among the mandatory attributes which must be included in the identity of the person, a gender-related attribute (sex), the possible values of which are defined as ‘unknown’, ‘male’, ‘female’, ‘other’, ‘between’, ‘inter’, ‘diverse’, and ‘open’.
However, national law of the vast majority of associate States, including Poland, where the dichotomical division of society into 2 sexes is part of the basic principles of the national legal order, does not supply for the anticipation of defining sex as another than ‘male’ or ‘female’. Countries that let specified diversity of sex are inactive a vast number of EU countries. Even where specified practice is permitted, it is, in the vast majority, only applicable to people suffering from indifference disorder and is applied in extreme, isolated and uncommon cases.
Nowhere, however, is the variety of possible recognition allowed as proposed in the draft implementing regulation. Importantly, according to the case law of the European Court of Human Rights, including in peculiar the judgement in Y. v. France of 31 January 2023, the European Convention on Human Rights does not give emergence to an work for the state to recognise sexes another than men and women.
In addition, according to Article 3(3) of Regulation (EU) No 910/2014 of the European Parliament and of the Council, ‘identification data’ means a set of data that is issued in accordance with Union or national law. Consequently, the Ordo Iuris Institute indicated that appropriate amendments should be made in the Regulation to let associate States to make specified a set of data identifying the individual associated with the portfolio concerned, which will be consistent with the data disclosed in the records of civilian position records. On the another hand, it should be clear from the government that it is not acceptable to designate sex as another than male or female if it is contrary to national law of the issuing State of the European Digital Identity Wallet.
– It should be noted that the word "other", "between", "various" or "open" has not been defined anywhere and it is not known precisely what they are. In particular, they shall not be included in the ISO/IEC 5218 standard as set out in the Annex establishing an global standard for the coding of sex utilizing numerical expressions in electronic databases. This standard only provides for 4 values: ‘unknown’, ‘male’, ‘female’ and ‘not applicable’. Therefore, the Ordo Iuris Institute indicates that the remaining values, which are not foreseen by this standard, should be completely removed from the project said Jędrzej Jabłoński, analyst of the Ordo Iuris investigation and Analysis Centre.
Ordo Iuris
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