‘Trans within and without the law’ -

the interplay between courts and civil registry offices in Poland

Anna Śledzińska-Simon

SJD, LLM

Poland

Court rulings and administrative practice in absence of a gender recognition act How to assert trans rights in absence of a legal act?

How to legally discipline the actors in the gender reassignment process (doctors, courts, public officials, private parties)?

How to adopt a legal act without ‘waking up a demon’?

How to advocate trans rights within a general LGBT advocacy strategies?

Gender recognition in Poland /Legal recognition of gender reassignment 1) medical stage

the practice varies depending on the reffering doctor (location);

dominated by the sexologists (not psychiatrists);may require mastectomy for F/M or just hormonal treatment for both F/M and M/F;unequal situation between F/M and M/F applicantsno sterilization required (sic!)to a great extent not publicly funded

2) judicial stage

a civil lawsuit against one’s parents (sic!) or a court-appointed curatorbased on medical evidence requirement of ‘irrevocable changes’court decision declaring the acquired gender as a legal gender

Gender recognition (2) 3) civil registry office birth certificate to be amended on the basis of the court decision;

amendment in the form of a so-called marginal inscription (additional note);=> cons of additional notes:

included in a full certified copy of birth certificate(not visible in an abridged certified copy of birth certificate)ex nunc effectlitigation

ECHR application pending: a full certified copy of bitth certificate required for adoption proceedure in France

legal rationale for not allowing rectification of a birth certificate: public security, prevention of crimes and criminal pursuit?=> pros of rectification:

a full certified copy of the certificate does not include an entry subject to a later correction

ex tunc effectnon-litigious proceedings

Additional note v. rectification in civil status records

If an occurance having impact on the content or validity of a civil status record takes place after such a record is made, any following changes are entered in the form of an additional note;

Additional notes are based on final court rulings, certified copies of civil status records, final decisions and other documents, which have an impact on the content or validity of the record;

If a civil status record has been erroneously or inexactly formulated, it can be rectified by court on the request of the interested person, the prosecutor or the director of the civil registry office;

An obvious spelling mistake to be corrected on the basis of the decision of the director of the civil registry office;

Theoretical question: rectification for those who did not live according to gender as at birth and additional note for those who lived according to gender as at birht (thumbs down);

Danger of subcategorization.

The Supreme Court rulings regarding gender recognition:

evolution or regression?

1978 decision, CZP 100/77

gender identity is protected as a personal right;

exceptionally courts can rectify civil status records before gender reassignment surgery takes place if features of gender to be acquired are predominant and changes are irreversible;

The Supreme Court

1989 decision, III CZP 37/89

transsexualism does not justify rectification of birth certificates in regard to gender as defined at birth;

civil status records only have a declaratory character and describe the legal status of a person, which is constituted by acts of law;

transsexualism cannot be described as a change resulting from an act of law, since it is a psychological transformation;

The Supreme Court

1991 judgment, III CRN 28/91

the valid procedure: action for a declaratory judgment (Article 189 of the Civil Procedure Code);

civil court declares the acquired gender on the basis of an opinion of a medical doctor attached to the writ of summons and a testimony of a medical expert;

On the basis of a declaratory judgment the additional note is entered in the birth certificate;

Theoretical question: continuity and indivisibility of gender?

The Supreme Court

1995 judgment, III CZP 118/95

Declaratory judgment available only after irrevocable changes towards the formation of the opposite sex or after a surgical intervention took place;

Declaratory judgment unavailable on the basis of a subjective opinion of the claimant;

The Supreme Administrative Court

2008 judgment, II OSK 845/07

Deletion of an entry concerning the gender as defiend at birth and an additional note concerning the acquired gender in the birth certificate is unlawful

Cassation by the F/M transsexual in a case concerning the decision given by the director of the civil registry office refusing to delete the above entries from the birth certificate

Consequences of gender recognition

A divorce is required before opening of the judicial stage of the gender recognition process (same-sex marriages or partnerships are unlawful in Poland yet); no consequences for marriages

the custody of children is awarded to non-transsexual parent; if the trans parent is the sole guardian of minor children, she or he must wait withh the gender recognition until they come of age

At least one case is known where the court recognized gender of a person remaining in a valid marriage relationship;

legal lacuna – no legal means to invalidate or dissolve such marriage against the will of the parties; the prosecutor does not have a right to file a divorce lawsuit;

No legal protection of a person undergoing the gender recognition process (temporary ID cards battle);

Consequences (2)

No additional note is made in birth certificates of children of a transsexual after the gender recognition; a civil action for a declaratory judgment or rectification procedure not tested

Can change the name in all official documents (no obligation to re-issue other vital documents: course or school diplomas)

Can marry a person of opposite sex to the acquired sex;

Can be entitled to pension upon reaching the retirement age prescribed for her/his acquired sex;

Can undergo further surgerical interventions (genital surgeries) like gender reassignment surgery on the basis of a declaratory judgment, notwithstanding the consent surgeons run the risk of criminal liability.

Conclusions

Juridication of the gender recognition process

Time (M.M. v. Poland) and costs

Privately funded medical treatment as a requirement of legal recognition

Lack of uniform medical practices leads to lack of uniformity in legal proceedings

After all, some human rights standards are met

adoption of a Polish GRA may deprive the trans community of certain rights at hand