Standardy ustalenia płci na gruncie Europejskiej Konwencji Praw Człowieka a prawo polskie

Abstract

As a party to the Convention for the Protection of Human Rights and Fundamental Freedoms, Poland is bound by the standards of human rights protection stemming from it, including those out lined by the European Court of Human Rights in its case law. One of the issues that has received extensive case law is the issue of gender recognition for transgender people. This article analyses the standards in this area, particularly with regard to the procedures that should be established in national law and the requirements that may be imposed on transgender people. It then focuses on the procedure in the Polish legal system. The conclusion is that Polish law does not comply with the standards of the Convention; in particular, it does not establish quick, transparent, and accessible procedures for gender determination. These are not governed by legal provisions, but are the result of the case law of Polish courts, which thus attempt to assist transgender people in regulating their legal situation. There is no clear position on the requirement to undergo gender reassignment surgery, although ECtHR judgments indicate that obliging transgender individuals to undergo surgery violates the Convention, especially if it were to result in that person’s infertility. There is also no precise definition of the evidentiary process in cases of gender determination.