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.
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.
