Published on 14 June 2021

FIRST SECTION

Application no. 31842/20 W.W. against Poland lodged on 29 July 2020 c ommunicated on 25 May 2021

STATEMENT OF FACTS

The applicant, W.W., is a Polish national, who was born in 1992 and is currently detained in Siedlce . The applicant was registered as male at birth but identifies as female. The applicant is represented before the Court by Ms A. Bzdyń , a lawyer practising in Warsaw.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant has continuously identified herself as female since early childhood.

Since 2013 she served several terms of imprisonment in male prisons (in connection with theft and burglaries). Currently, she is serving a prison sentence which is due to end in 2024.

In 2018 the applicant began demonstrating auto-aggressive behaviour. On 26 June 2018 she self-performed a bilateral orchiectomy. She submits that the act was motivated by psychological discomfort and distress arising from an incongruence between her gender identity and her biological sex. Subsequently, she became aggressive, attacked a prison guard and was classified as a dangerous detainee.

In December 2018 the applicant was examined by a psychiatrist ‑ sexologist, Dr D., who recommended that she pursue feminising hormone treatment. The expert prescribed her the medication and stated that the applicant required immediate and urgent hormone therapy. Failure to provide her with female hormones would endanger her life and her mental health.

In January 2019 the Piotrków Trybunalski Prison governor allowed the applicant to undergo the treatment. She bore the cost of the therapy herself. As a result of the therapy the applicant ’ s appearance changed and her physical and emotional health improved. She continued the therapy in Radom Prison where she was subsequently transferred.

On an unknown later date, she was transferred to Siedlce Prison. Initially, as she had a sufficient supply of the medication, she could continue the treatment.

On 28 May 2020 the applicant applied to the governor of Siedlce Prison for permission to be sent medication from outside the prison. The head of the prison medical unit in Siedlce Prison did not support her application and the governor refused to approve the continuation of the treatment without an opinion of an expert endocrinologist.

On 2 July 202 the applicant ’ s lawyer asked the Siedlce Prison governor to allow the applicant to continue hormone therapy. In support of the request three medical opinions were provided, as well as the applicant ’ s medical files.

On 24 July 2020 the applicant asked to be allowed to have a private medical consultation with an endocrinologist. The consultation was set for 5 August 2020.

On 30 July 2020, the Court applied an interim measure in accordance with Rule 39 of the Rules of Court, indicating to the respondent Government “to administer the applicant (...) with hormones prescribed by her endocrinologist (Lutein and Estrofem ) in doses prescribed, at her own expense, until otherwise decided by an endocrinologist”. According to the information provided by the parties, the medication was provided to the applicant on 31 July 2020.

On 5 August 2020 the applicant had a consultation with an endocrinologist. The doctor prescribed her female hormones.

The applicant submits that her lawyer is preparing a claim under Article 189 of the Code of Civil Procedure, to obtain recognition of her new sexual identity.

The case-law of the Supreme Court provides guidelines on the procedures for the legal recognition of the situation of transgender persons . In order to have a person ’ s gender changed, he or she may lodge a claim under Article 189 of the Code of Civil Procedure, to obtain recognition of a new sexual identity, the so-called “declaratory action” ( powództwo o ustalenie ). This provision provides that a plaintiff may request a judicial declaration as to the existence or non-existence of a legal relationship or of a right, if he or she has a legal interest therein. Anyone wishing to change their gender and name (for civil status purposes) following gender reassignment surgery, can do so by bringing an action against their parents on the grounds that they wrongly indicated the child ’ s gender at the time of birth. If the parents are dead or their whereabouts unknown, the court appoints a guardian.

On 23 July 2015 Parliament adopted the Act on Gender Recognition (“ Ustawa o uzgodnieniu płci ”). However, in October 2015 the President of Poland vetoed the bill. The act was designed to facilitate the process of gender recognition.

COMPLAINTS

1. The applicant complains invoking Article 2 of the Convention that the refusal to allow her to continue feminising hormone therapy in Siedlce prison caused her emotional distress which put her at risk of suicide.

2. She further complains under Article 3 of the Convention alone and in conjunction with Articles 13 and 14 of the Convention that the refusal to allow her to continue the therapy in Siedlce prison amounted to inhuman and degrading treatment; the prison governor ’ s decision was motivated by discriminatory factors and she had no effective remedy to appeal against it.

3. The applicant also alleges under Article 8 in conjunction with Article 14 that the refusal in question was motivated by discriminatory factors.

QUESTIONS TO THE PARTIES

1. Having regard to the applicant ’ s vulnerability as a transgender person deprived of her liberty, has there been a violation of Articles 3/8 of the Convention on account of the fact that she did not have access to transfeminine hormone therapy between 18 and 31 July 2020 (Compare Van Kück v. Germany , no. 35968/97, §§ 82-86, ECHR 2003 ‑ VII; L. v. Lithuania , no. 27527/03, ECHR 2007 IV; and Y.T. v. Bulgaria , no. 41701/16, 9 July 2020 )?

2. Does any issue arise under Article 2 of the Convention in relation to the applicant ’ s suffering and emotional distress on account of the fact that she did not have access to transfeminine hormone therapy between 18 and 31 July 2020?

3. Did the applicant have an effective domestic remedy at her disposal for her complaints under Articles 3 and 8 of the Convention as required by Article 13 of the Convention?

4. Did the treatment to which the applicant was subjected amount to discriminatory treatment contrary to Article 14 of the Convention, read in conjunction with Article 8 of the Convention?