The Czech Supreme Administrative Court (NSS) has rejected an appeal from a pre-op transgender person who claimed that the requirement for them to undergo surgery to change from a woman to a man before they can officially change their gender was unconstitutional.
The appellant was born as a woman but now identifies as a man. They wanted official recognition of their amended gender status but the Czech registry office refused to comply with the request for an official change of gender, including the entry of a male name and a male version of the birth number, because the appellant had not undergone a surgical procedure associated with the disabling of reproductive function, as required by law.
The decision, in which the NSS emphasized the importance of protecting the basic natural attributes of family and parenthood, is temporarily binding on the official board. The Constitutional Court recently decided on a similar case with the same result. According to the NSS, the applicant’s hope that the new composition of the Constitutional Court will rule in his favor was curious.
The applicant, whom the court refers to as male according to his wishes, claimed that the conditionality of gender change by carrying out a surgical intervention consisting of the transformation of the genitals and the disabling of reproductive function is unconstitutional. He claimed the law is contrary to the fundamental right to preserve human dignity and respect for private and family life, and it is also contrary to the prohibition of torture.
The NSS submitted that the requirement of the Civil Code is clear and that the registry authorities could not decide otherwise than to reject the applicant’s request to register a change of gender from female to male. “We are aware that the legal requirement to change gender has serious consequences. It is a mutilation procedure, usually irreversible, which, like other medical procedures, is not without risk. There is also the risk of a tragic mistake, which can happen even with the consecration of professional medical authorities,” said Senate President Tomáš Langášek. The term mutilation refers to the deformation or disfigurement of the body.
However, the NSS also refused to suspend the proceedings and submit a proposal to the Constitutional Court (ÚS) to annul the provisions of the Civil Code. The ÚS recently dealt with a similar proposal and rejected it. According to the NSS, the complainant did not reveal anything new that should lead to reopening the question. “Not even a change in the staffing of the ÚS can be such a reason, because even the ÚS itself, in any personnel composition, is bound by its finding,” the court stated.
The NSS also emphasized that in so-called status issues, which include gender changes, the courts should exercise restraint and leave the solution to the democratically elected legislature. He also pointed to the protection of the basic natural attributes of family and parenthood: a child has a father – a man and a mother – the woman who gave birth to them. Czech family law stipulates that the parents of the child are a man and a woman. If a person born female could become legally male without being disabled from reproductive function, she could then give birth to a child as a male and yet not legally become the child’s mother.
“At the same time, these are not imaginary situations. In countries where gender can be changed only on the basis of a declaration, they have to solve unprecedented and delicate legal problems,” said Langášek. He pointed to the judgments concerning the German legal environment. In the first of these, the European Court of Human Rights (ECHR) considered a case of refusal to register a person who was originally a biological man as the second mother in the child’s birth certificate. Her sperm was used to produce the child after she was reassigned to a female, and despite her new female gender, she was listed as the father on the birth certificate.
In the second case, the ECHR assessed the mirror-reversed situation, when the German authorities refused the request to register a person who was originally biologically female as the father in the birth certificate of the child he fathered after changing his gender to a male and after artificial insemination with the donor’s sperm. Despite his new male gender, he was listed as a mother on the birth certificate. In both cases, the European Court rejected the complaint.
The NSS emphasized that if the ÚS canceled the provisions of the Civil Code on the ground plan of the current case, and then the NSS decided on the matter again, it would have to uphold the cassation complaint, or the complainant’s lawsuit, despite the fact that he did not present any evidence in the proceedings that he really is a transgender person. The consequence would thus be judicial enforcement of an exclusively subjective concept of gender change based only on the request of the given person. At the same time, this is a solution that, according to the NSS, does not fundamentally belong to the courts.
“Such a solution could only be accepted from the decision of the legislator, with the simultaneous comprehensive resolution of a number of related issues across the entire legal system, not only in family law, but also the justification for the continued existence or conditions of protection of women and mothers in labor and social law, issues of discrimination between women and men in the regime of restriction of personal freedom (detention, personal search, enforcement of detention and prison sentence), and discrimination based on gender in the regime of conscription, in sports and elsewhere,” the NSS said in its judgment.
