In modern democratic societies of today, the identity of a person, including their national or religious affiliation, gender or sexual identity, and other parts of their identity, is primarily defined by the individual, while taking into account the interests of society and the state. This should also be the basis for regulating names. In our opinion, the current Names Act and the proposed Bill do not follow these principles.
We recognized in our opinion that a name is one of the most important components of a person’s identity, it is the main way of identifying a person in ordinary communication. Name also plays an important role in a person’s private and family life and may be linked to their identification as part of a national, ethnic, or cultural group. Thus, the regulation of names should be guided by human rights, including the right to a name, the right to identity and the right to respect for private and family life. When regulating the use of names, it is necessary to assess in advance how purposeful, justified and proportionate the State’s intervention is in the person’s free choice of a name, given the central place of the name in the person’s identity.
We found that modernizing the regulation of names of people of foreign origin and aligning them more with universal human rights is a positive step. Estonian society is diverse, and the Names Act must take this reality into account.
Unfortunately, the draft and its explanatory memorandum contained parts that raised questions and which we need to improve. The purpose of the law itself is already inadequately justified. According to the authors of the explanatory memorandum, “we have to start thinking more and more about protecting our national identity, as the world is increasingly open to people and people may not even realize that we are moving away from the Estonian language and name tradition.” There is no basis for such a speculative statement.
We considered it contradictory to the constitution that people living in a registered partnership cannot take a common surname. This contradicts the recent Supreme Court rulings that same-sex couples are protected by the fundamental right to family life. In the present case, there is no justification for the difference in treatment between registered partners and spouses concerning a common surname.
In addition, the issue of giving a “gender unsuitable” name, which is based on an outdated approach and disproportionately restricts human rights, raised some questions. The justification that a person’s first name should always and without exception indicate their sex is totally inadequate and contrary to the rules on the protection of personal data. The ban on the ability for criminals to change their name is also incomprehensible and disproportionate.
The bill is also problematic in that the beneficiary of international protection has to wait at least five years before receiving a long-term residence permit and only then can they change their name. In certain cases, refugees need to change their name to ensure their safety, as their country of origin may try to hunt them down. It may also be the case that a refugee has a name that makes integration in Estonia difficult, having an inappropriate meaning in Estonian or simply being unpronounceable to Estonians. In this way, the restriction of changing one’s name also prevents integration.
Other restrictions on changing the name and justifying it are, in our view, unnecessary and over-regulating, without being adequately justified. The authors of the Names Act live in the 1930s Estonia; in a time where personal identification code and e-Estonia do not exist.
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