The European Committee of Social Rights determined that requiring transgender individuals to undergo gender reassignment surgery and sterilization in order to have their gender legally recognized is a violation of Article 11§1 of the European Social Charter human rights treaty, which guarantees protection of health.
Transgender Europe and ILGA-Europe brought the claim that the steps Czechia requires for people to amend their gender on legal documents violate Article 11 of the European Social Charter (the Charter), of which Czechia is a party. In Czechia, in order for persons who wishes to change the listed gender on their birth certificate or other legal documents from male to female or from female to male (non-binary gender is not legally recognized in Czechia), that person must undergo gender reassignment surgery that both changes their genitals and sterilizes them for life. Additional requirements include diagnosis of Gender Identity Disorder, dissolution of any marriage or registered partnership with a partner, and approval of the change by a governmental expert committee. People who do not or cannot meet all these requirements are forced to live their lives with legal documents that do not match their true gender, opening the doors to discrimination and psychological harm throughout their lives.
In its analysis, the European Committee of Social Rights (the Committee) considered only Section 1 of Article 11, which states that “[e]veryone has the right to benefit from any measures enabling [the]m to enjoy the highest possible standard of health attainable.” In 2017, the European Court of Human Rights held in A.P., Garçon and Nicot v. France that a gender transition requirement involving sterilization is in breach of a person’s right to respect for private life under Article 8 of the European Convention on Human Rights. The European Court determined that, by making recognition of their gender conditional on unwanted surgery, transgender people were forced to relinquish their right to physical integrity in order to receive respect for their private life. The Committee applied a similar logic to Article 11§1 of the Charter.
The Committee determined that States’ obligations under Article 11 include refraining from interfering with the enjoyment of the right to health. The Committee explained that Czechia’s requirements pose serious issues for the ability to give free consent because it makes a transgender person’s right to dignity conditional on unnecessary medical procedures. Gender reassignment surgery is not necessary for the protection of health, and can in fact cause physical and psychological harm to those undergoing it. People who wish not to undergo sterilizing gender reassignment surgery or are advised not to for medical reasons have no recourse to change their identity documents to reflect their actual gender. This results in a lack of free informed consent for the procedure, which breaches personal rights to physical integrity, human dignity, and protection of health. The Committee held that “[a]ny kind of medical treatment which is not necessary can be considered as contrary to Article 11, if obtaining access to another right is contingent upon undergoing it.” This includes Czechia’s conditional requirement that transgender people undergo gender reassignment and sterilization surgery in order for their gender to be legally recognized.
While the claimants also posited during the case that Czechia’s gender transition requirements discriminated against transgender people in violation of the Preamble to the Charter, the Committee decided not to address this issue because the claim was originally pleaded only under Article 11 of the Charter itself. Committee Vice President Karin Lukas wrote a concurring opinion disagreeing with the Committee’s decision to not address this issue and arguing that conditional sterilization does amount to discrimination on the ground of gender identity.
Despite this ruling, the Czech Constitutional Court determined on March 31, 2022 that Section 29(1) of the Civil Code and Section 21(1) of the Specific Health Services Act, which require gender reassignment surgery before a person may legally change their gender, will remain in place. The court dismissed a motion to repeal those statutes, arguing that there is nothing constitutionally wrong with only legally recognizing “male” and “female” sexes nor with requiring a person to undergo physical sex changes to change their legally recognized sex. The Czech Constitutional Court argued that because sex is distinct from gender, this rule does not prohibit a person from identifying as their preferred gender, and dismissed the concerns a person might have with having identification cards that reveal a sex that does not match their gender. It is unclear whether the court may decide differently in future cases or whether the Czech legislature will repeal these statutes independent of the courts.
This case is an important milestone in the international movement toward recognition of the right of a person to have their gender identity legally recognized by their state. While an increasing number of countries across Europe allow people to legally change their gender with a simple declaration, Czechia is one of more than half of European countries that still require abusive and humiliating steps including sterilization in order for a person to legally transition. As European Courts and Committees determine transgender rights to be protected under an ever-lengthening list of international treaty agreements, European nations, including Czechia, are being pressured to change their laws to allow people to transition simply and humanely.
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.
