By Pavel Doubek*
On 31 March 2022, the Czech Constitutional Court (CC) quashed the constitutional complaint of an applicant who asked to change her birth registration number to align with her gender identity and contested several provisions of Czech law on account of alleged unconstitutionality and incompatibility with the European Convention on Human Rights (ECHR).
The applicant was born as a male but struggled considerably since the male physical identity matched her gender identity of being neither male nor female (non-binary person). In the proceedings before the CC, the applicant wished that a feminine form was used, hence likewise is referred to her in this article. She contested a repetitive rejection to change her birth registration number (currently the male format) into the neutral gender (or at least feminine form). She pleaded unconstitutionality of a statutory provision in the Act on Records of Population (§ 13 para 3) which stipulates the format of a birth registration number.
The crux of her complaint does not lie, however, in the format of the birth registration number but in the statutory requirements for a change of that number. Act on Records of Population (§ 17 para 2 (d)) provides that such administrative change is possible only if a person´s gender is changed. The Civil Code (§ 29 para 1) and the Act on Specific Health Services (§ 21 para 1) further stipulate that the gender could be officially changed, once a person undergoes gender reassignment surgery "while simultaneously disabling the reproductive function and transforming the genitalia" (surgical sterilization).
The applicant disagreed with the obligation to undergo surgical sterilization as it was not deemed necessary. She argued that such requirement violates her constitutional rights, namely the right to private life, physical and psychological integrity and right to be free from torture and ill-treatment under Article 7 of the Czech Charter of Fundamental Rights and Freedoms and Articles 3 and 8 of the European Convention on Human Rights.
The CC´s Deadlock and the Replacement of Justice-Rapporteur
Initially, the CC Justice Kateřina Šimáčková was appointed as the Justice-Rapporteur and tasked to draft the decision for the CC plenum (14 Justices). She proposed to uphold the applicant´s complaint on the account of the unconstitutionality of the Civil Code´s provision (§ 29 para 1, first sentence) and dismiss the remainder of the application. In Šimáčková´s opinion, a requirement of mandatory sterilization failed to satisfy the proportionality principle and violated the applicant´s constitutional rights.
Since Šimáčková´s draft failed to get the support of at least nine Justices (8 voted in favour, 6 against) as required by the Constitutional Court Act (CCA) (§ 13) for declaring a statutory provision unconstitutional, the applicant's petition had to be dismissed. Justice Milada Tomková (one of the six opposing Justices to Šimáčková´s draft) was then appointed as the new Justice-Rapporteur and required to elaborate the reasoning of the dismissing judgment. (para 21)
It is not a surprise that Justice Tomková´s reasoning did not reach the same conclusions as to her predecessor. However, given its stark contrast to the remaining eight Justices´ views, it received strong criticism from seven of them who joined in with dissenting opinions. (pp 15-35) Therefore, it is kind of paradoxical that CC´s judgment reflects the views of a minority of the CC Justices ("the relevant minority") instead of being based on the views of the CC majority. It is so more frustrating when the physical integrity of a person is at stake.
"The Relevant Minority´s" View: Only Males and Females
Despite the applicant pleading unconstitutionality of several statutory provisions, concerning, in principle, the legal impossibility to change her birth registration number and mandatory sterilization as a precondition for that change, the relevant minority did not see her complaint as that complex.
Intriguingly, the relevant minority concluded that the case before it is not about changing one's gender, but instead concerns the format of one's birth registration number. Therefore, the CC refused to carry out a constitutional review of the statutory requirement of the sterilization surgery but paid attention solely to whether the applicant has an arguable claim to ask the State to recognize a „neutral“ birth registration number. (paras 30-33) The relevant minority concluded that: “There is no point in dealing with specific requirements for changing the gender from male to female on the basis of the case of the applicant, who was not born as a woman, does not consider himself to be a woman and has not yet decided if he wants to change gender to a female at all.”(para 31)
The entire Court's reasoning could be then succinctly marked by concerns about recognizing the "third gender", guarding the public order and reassuring that there are only two categories of people - males and females. The latter argument is developed in significant detail and lists a plethora of situations where the "third gender" would be problematic, for example, a separation of men and women for sports activities, separation in prisons, etc. (paras 39-49) The CC concluded that the birth registration number that corresponds to biological gender is needed to satisfy a variety of state functions, hence meeting the constitutional requirements.
It is also remarkable that the relevant minority entirely overlooked applicable ECtHR´s jurisprudence concerning transgenders´ rights by stating tersely that it has “considerable doubts about the transferability of some ECtHR´s gender-related conclusions into the Czech legal order”. (para 61) The CC did neither explain what is the character of these doubts nor what ECtHR´s judgments are inapplicable in the Czech context. Not even judgments expressly invoked by the applicant (paras 7, 16) have been taken into consideration.
The Dissenting Majority Strikes Back: What is the CC´s Role and What is Not
Seven CC Justices demonstrated a strong disagreement with the relevant minority´s reasoning. Not surprisingly, Justice Šimáčková´s dissenting opinion is the most peculiar. Not only for being more extensive than the reasoning itself and applying a significant portion of international legal standards including pivotal ECtHR judgments but mainly for drawing a clear line between which rights should be examined by the CC and which should not. Šimáčková made it clear from the outset that the crux of the case was a statutory duty to undergo mandatory surgery as a requirement for gender change, and not the legal regulation of birth certificate number in itself. In her opinion, it is the former that was applied in the applicant´s case and what should be subjected to constitutional review. (p 18, para 15)
Šimáčková´s dissent did do the job of what one would expect from the CC´s reasoning. Instead of ruminating about diverse public policy issues, it should be the role of the CC to rigorously examine each complaint of the applicant on account of the alleged unconstitutionality (CCA,§ 72 para 1).
Šimáčková underscored that one´s identification with other than original biological gender is intimately linked to a person's private life: “It is a cardinal decision of the individual about oneself, which falls under the guarantee self-determination and the protection of the right to inviolability of privacy.”(p 22, para 28) Furthermore, she went on to argue that an invasive medical intervention does not only violate personal integrity and right to private life but also “treats transgender people as an object and exposes some of them to a choice between intense physical and mental suffering”, hence amounting to inhumane and degrading treatment contrary Article 7 of the Czech Charter of Fundamental Rights and Freedoms and Article 3 of the European Convention on Human Rights. (p 30, paras 60-63)
The other six dissenting Justices criticized likewise the adopted reasoning as well as a deaf ear shown to the Strasbourg Court. Unlike the relevant minority, dissenting Justices underscored explicitly that “the statutory provision in question does not correspond to the ECtHR´s case law.” They went on to argue that while the “relevant minority” has considerable doubts about the transferability of some ECtHR´s judgments into the Czech legal order, “we have no doubts about this transferability and consider the ECtHR case law concerning the interpretation of the Convention to be binding.” (p 34, para 10)
Conclusion: The CC as the Guarantor of the Czech Constitutionality and the ECtHR's "Loyal Ally"?
The CC stated in its following press report that its role is neither to "protect or perhaps even promote modern trends" nor to be "an arbitrator entering cultural wars and actively determining the direction of social development in the Czech Republic". Justice-Rapporteur Tomková further expressed satisfaction that the CC "resisted the temptation to be omnipotent."
To me, it seems inappropriate to wrap the applicant´s suffering stemming from her gender identity in terms of "modern trends" or "cultural wars". In the same way, no one asked the CC to be omnipotent but to conduct a rigorous constitutional review of impugned laws. I am, therefore, subscribing fully to dissenting Justices´ argument that “if the Constitutional Court is so self-constraint as it has shown in this case, the fundamental rights of the minority in question will not be effectively protected by anyone. And that is, in the context of the rule of law, a big mistake.” (p 35, para 11)
It is also regrettable that despite the ECtHR has already clarified the right to legal recognition given a gender reassignment (Christine Goodwin v. the United Kingdom) and paved a solid way toward the impermissibility of sterilization surgery as a legal requirement for the official recognition of gender (A.P., Garçon and Nicot v. France, X and Y v. Romania and Y.T. v. Bulgaria), it did not resonate in the relevant minority´s reasoning. Hence, despite the Czech CC being regarded as the ECtHR´s “loyal ally” since it is well-receptive to its jurisprudence (Kosař et al (2020), p 182), the judgment in question shows the CC from a different angle. Notwithstanding a single judgment cannot have any broader implications on the CC´s relationship with its international counterpart, one shall not underestimate a possible turnover of the CC in the future. In particular, when one of the most "ECtHR-friendly" Justices, Kateřina Šimáčková, has been recently elected the ECtHR Judge, hence leaving the CC.
In the end, one may be a bit optimistic. Since the said judgment was adopted by the CC relevant minority, it has no precedential power (p 15, para 2) and the CC is not prevented to adjudicate this issue differently in the future. Moreover, since the applicant has exhausted all domestic remedies, she has the door open to the Strasbourg Court. If she will succeed, the CC may be asked to revise its previous judgment while being bound by the ECtHR´s opinion (CCA, paras 117-119b). But here, we are getting too ahead of ourselves.
*The author is a postdoctoral researcher at Institutum Iurisprudentiae, Academia Sinica, Taiwan.
