Ohter – Fundamental Rights

Judicial Interaction Techniques; Role of national higher courts

Nejvyšší správní soud

Supreme Administrative Court

2 As 199/2018-37

30.5.2019

ECLI:CZ:NSS:2019:2.As.199.2018.37

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Personal Identification Number – Gender Reassignment – Neccessity of Medical Intervention – Dialogue Between National Courts and ECtHR

Is the requirement for medical intervention for formal gender reassignment (and associated change of personal identification number) consistent with human rights in the context of the Czech Republic?

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The applicant is a biological male who identifies as a gender-neutral person (or female if required to choose). However, her personal identification number corresponded to her biological sex (the identification number in the Czech Republic consists of the person's date of birth in the format YYYYMMDD and four other random numbers. If the person is a woman, 50 is added to the DD value). She therefore tried to initiate an administrative procedure to change her personal number, preferably to a neutral (or at least female) one. The administrative authority refused to initiate the administrative procedure because the complainant had not undergone the medical operation for gender reassignment required by law, which would have resulted in the loss of her reproductive capacity. She therefore initiated court proceedings, demanding the initiation of the administrative procedure, arguing that the requirement to undergo surgery was incompatible with her human rights. When the Municipal Court in Prague dismissed the case, she appealed to the Supreme Administrative Court.

The Supreme Administrative Court began by considering society's understanding of gender in the context of the Czech Republic. It noted that there has undoubtedly been a growing tolerance for a non-binary perception of gender in recent years. However, even today, the basic social perception of gender is binary, and such a subjective perception of oneself in relation to a particular gender, as alleged by the complainant, is generally regarded as an anomaly that should not be the norm and is not desirable. The vast majority of the current population of the Czech Republic considers it appropriate and good that there should be a correspondence between the outward appearance of a person's gender and the gender that the person claims to be. Contemporary Czech law is thus based on a kind of modified objective concept: legal gender is strictly binary and determined on the basis of medical (i.e. "objective") criteria, the assessment of which is agreed upon by virtually all external observers. At the same time, one's legal sex can be changed during one's lifetime if there are relevant medical reasons for doing so (which must include an appropriate degree of the person's will to change) and if the medical adjustments to the individual's organism prescribed by law are made, and only under the following conditions. The subjective concept of social gender ("I am the gender I feel myself to be") has not yet penetrated the general consciousness of contemporary Czech society, although it is already the subject of discussion.
The Court then went on to delineate the acceptability of judicial dialogue with the ECtHR. On the one hand, it explicitly recognises that the decisions of the ECtHR are a fundamental guide for the Czech authorities in the interpretation and application of national law. The case law of the ECtHR (as well as that of the Constitutional Court) is binding in the sense that it establishes a minimum standard of protection. On the other hand, there is the possibility of a substantive judicial dialogue. Thus, the Municipal Court did not err in entering into such a dialogue.
After recalling the main points of the case law of the ECtHR and the German Federal Constitutional Court, the Supreme Administrative Court joined the dialogue. The Supreme Administrative Court considered that under the conditions of the Czech Republic, the binary concept of gender is so firmly established and considered to be normal, desirable, "natural" and one of the cornerstones of the social order that it cannot be abandoned by way of a judicial decision, even in cases such as those allowed by the case law of the ECHR or the German Federal Constitutional Court. it is therefore necessary to view legal gender in a strictly binary and essentially "objective" manner and not to allow any relaxation of the above rule, even in the admittedly subjectively complex situations described above. The Supreme Administrative Court considers that legal gender must be perceived in this way because it creates and maintains a framework of what is desirable and what is statistically normal. By insisting on the binary of legal gender and strict requirements for gender reassignment, society expresses its willingness to maintain the current normative assessment of the discrepancy between biological and perceived gender. The Court does not rule out the possibility that society's view of the concept of legal sex may change over time, as it has on many other similar issues. However, it considers that it is not the role of the apex court to bring about a change in society's view through its jurisprudence. The Court sees no reason why its decision, even if it could be based on the decisions of the ECtHR and some supreme courts of other states close to the Czech Republic in their legal culture, should contribute to the erosion of the binary and 'objective' concept of legal gender. According to the Supreme Administrative Court, the choice faced by an individual who feels a discrepancy between his or her legal and subjectively perceived gender is reasonable and within the limits of what can be fairly demanded of such an individual in the current conditions of Czech society, even in the knowledge that he or she did not choose his or her status, but was chosen by "fate". It therefore rejected the complaint.

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other – disagreement; comparative reasoning with foreign legislation or foreign caselaw

The Supreme Administrative Court cites the ECtHR case law and engages in judicial dialogue as it is disagrees with applicability of its conclusion within the Czech context. The possibility of judicial dialogue and the rejection of excessive judicial activism is also supported by reference to the Constitutional Court case law.
The Supreme Administrative Court also cites its own case law, mainly in relation to procedural aspects of the case.

The Supreme Administrative Court (as well as the Regional Court) wanted to engage in a good faith disagreement with the ECtHR, and as such it had to recognise it.

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No

Yes

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The decision of the Supreme Administrative Court was reviewed by the Constitutional Court.  In the course of the proceedings, the matter was referred to the plenum for a decision on whether to strike down the legal provisions requiring surgery for formal gender reassignment.  The Court refused to do so in its decision of 9.11.2021, Pl.ÚS 2/20. Although a majority of the judges were in favour of striking down the provisions, there was not a sufficient majority (9 votes are required to strike down a provision, and only 8 were in favour). With regard to the case law of the ECtHR, the Constitutional Court expressed considerable doubts about the transferability of some of the ECtHR's conclusions on gender to the Czech legal system. However, the Constitutional Court refused to elaborate on this issue in the present proceedings, as the case law of the ECtHR concerned legally and factually different cases (for details see e.g. https://verfassungsblog.de/evasive-insensitive-ignorant-and-political/).
It should also be noted that the issue is now before the plenum again, as another case has reached the Constitutional Court (see the decision from 13.12.2023, I.ÚS 2776/23, which refers the matter to the plenum).

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