Published on 25 September 2023

FIFTH SECTION

Application no. 33037/22 T.H. against the Czech Republic lodged on 27 June 2022 communicated on 8 September 2023

SUBJECT MATTER OF THE CASE

The applicant identifies herself as a person with a non-binary gender identity (“intergender”). At birth the applicant was registered as a boy, with a clearly male name. The applicant submitted that from an early age she had struggled considerably with her gender identity, since the male identity assigned to her at birth did not match her psychological and social one. Nevertheless, due to her concerns about medical complications she refused to undergo an irreversible male-to-female sex reassignment surgery (which would entail, among other things, sterilisation). She underwent hormonal treatment (to reduce testosterone levels) and some body aesthetic procedures.

In 2012 the applicant applied for a change of her first name. The relevant administrative authority allowed that application, registering the applicant under a new forename. Since 2012 the applicant also repeatedly requested to change the “sex/gender marker” and the numerical personal code (birth number) on her national identity card. However, the authority dismissed those requests on the ground that the applicant had not fulfilled legal conditions for such a change, namely she had not proved to have undergone a sex reassignment surgery, which was laid down as a condition for a change of sex/gender by Article 29 (1) of the Civil Code and section 21 (1) of Law no. 373/2011 on Specific Health Services.

The applicant lodged an administrative action which was dismissed on 14 May 2018 on the ground that, having not undergone a sex reassignment surgery, she had not met one of the conditions for changing the sex/gender marker in the civil-status records. On 30 May 2019, the Supreme Administrative Court dismissed the applicant’s cassation appeal, explicitly opposing the conclusions reached by the Court in Garçon and Nicot v. France (nos. 79885/12 and 2 others, 6 April 2017 (extracts)) with a reference to a strong binary perception of gender in Czech society.

Subsequently, the applicant lodged a constitutional appeal, seeking also a constitutional review of the above-mentioned domestic law provisions. By its judgment no. Pl. ÚS 2/20 of 9 November 2021, the Constitutional Court found those provisions compliant with the Constitution and, consequently, dismissed the applicant’s constitutional appeal on 7 June 2022 (no. II. US 2460/19).

The applicant submits that the refusal of her requests concerning a change of the “sex/gender marker” and of the numerical personal code, on the ground that she had not undergone an irreversible sex reassignment surgery prescribed by domestic law, amounted to a violation of Article 3 of the Convention.

Relying on Article 8 of the Convention, the applicant complains that domestic law makes the legal recognition of her gender identity conditional on an irreversible surgery, which is at odds with the State’s positive obligation to secure her rights to personal autonomy and to recognition of her gender identity.

Under Article 14 of the Convention taken in conjunction with Articles 3 and 8 of the Convention, the applicant complains that she is forced to repeated and involuntary coming outs every time she has to present her identity documents.

QUESTIONS TO THE PARTIES

1. Has the respondent State’s refusal to grant the applicant’s request to change the sex/gender marker and the numerical personal code (birth number), on the ground that the applicant had not undergone an irreversible surgery entailing sterilisation, amounted to a violation of either Article 3 and/or Article 8 of the Convention, taken alone or in conjunction with Article 14 (compare , mutatis mutandis , with A.P., Garçon and Nicot v. France , nos. 79885/12 and 2 others, 6 April 2017 (extracts); and Y.T. v. Bulgaria , no. 41701/16, 9 July 2020)?

In particular, what are the considerations of general interest justifying the domestic law requirement of an irreversible sex reassignment procedure, and was a fair balance maintained between those and the rights of the applicant guaranteed under Article 8?

2. Has the applicant suffered discrimination in the enjoyment of her Convention rights on account of being an intergender person, contrary to Article 14 of the Convention read in conjunction with Articles 3 and 8? Reference is made to the fact that the domestic authorities refused to reflect the applicant’s gender identity in her official documents.