Prosecutor General Adam Bodnar withdrew the request for a resolution by the Supreme Court in the context of the gender recognition procedure – said Anna Adamiak, spokeswoman for the Prosecutor General, in a statement. As she wrote, it would be an “abstract” resolution.
The legal issue in this case was referred to the Supreme Court by the previous prosecutor general and minister of justice Zbigniew Ziobro. Ziobro’s motion sought to resolve the issue of whether if a person who wants to change their gender has a spouse or children, they must file a court case for gender correction.
“On January 29, 2024, the Prosecutor General, Mr. Adam Bodnar, withdrew the request to adopt a resolution of an abstract nature by a panel of seven judges of the Supreme Court regarding a legal issue relating to the group of people participating in the gender recognition procedure, submitted by the previous Prosecutor General, Mr. Zbigniew Ziobro ” – noted in Tuesday’s announcement by Prosecutor Adamiak entitled “Information on the withdrawal of an application interfering with the rights of persons seeking gender recognition.”
“In the opinion of Prosecutor General Adam Bodnar, this request was intended to make the above procedure more difficult. This was planned to be achieved through the participation of additional entities in these proceedings, including children of people seeking gender recognition, which could lead to a violation of their rights,” we read.
PG: no discrepancies regarding the interpretation of the regulations
As added in the letter, “in the current jurisprudence of the Supreme Court, there are no discrepancies as to the interpretation of legal provisions that are the basis for adjudicating in cases regarding the determination of legal gender.”
“In these proceedings, only the parents of the person applying for gender change have passive locus standi, and if they are dead, the guardian appointed by the court” – recalled prosecutor Adamiak. She noted that he expressed a similar view on this matter Ombudsman.
Justification of the application
On January 19 this year, a panel of seven judges of the Civil Chamber of the Supreme Court dealt with this issue. It was then decided that the entire Civil Chamber of the Supreme Court should consider the question.
The president of this Chamber, Joanna Misztal-Konecka, said then that the procedure in the gender reassignment procedure “was in fact created by court decisions, and its correctness is of great importance from the point of view of the protection of civil and human rights.”
– Consequently, decisions regarding the correctness of such a procedure should have a sufficient basis, and this should be sought in the decision of the entire Civil Chamber – she said.
It is generally assumed that in cases concerning the determination or correction of legal gender, the plaintiff’s parents have the locus standi, or – if they are no longer alive – the guardian appointed by the court. The parents’ right to participate in such matters is derived from the fact that they are entered in the plaintiff’s birth certificate, and the court’s decision is the basis for disclosing the gender change in this certificate.
However, in 2022, a question on this issue was asked by the then Attorney General, and it was then signed by his deputy Robert Hernand. In the justification for this question, it was assessed that the spouse or children must also appear in such a case.
Like, among others, argued the deputy PG, the legal nature of the marriage entered into by a transsexual and the essence of the bond between undivorced spouses require not only the necessity of the participation of the transsexual spouse in the court case, but also the inadmissibility of an action for the correction of the registered gender.
The deputy PG added in the justification for the question that in the event of a different interpretation – “if such a claim were accepted on the day following the date of the judgment becoming final, it would result in the legal sanctioning of the marriage of two persons of the same sex, which is unacceptable under the law.”
The Commissioner for Human Rights wanted to refuse to adopt the resolution
In his position submitted to the Supreme Court, the Ombudsman requested the refusal to adopt the resolution because, in his opinion, there are no discrepancies in the court jurisprudence. Moreover – as the Ombudsman pointed out – in practice, people filing a claim for gender determination decide to divorce earlier.
The representative of the National Prosecutor’s Office, prosecutor Grzegorz Bucoń, replied in January, during a hearing in the Supreme Court, that the fact that it is not common for a person bringing such a claim to have a spouse does not mean that there is no legal problem.
The position of the Campaign Against Homophobia on this issue advocated the least burdensome form of such a process for a transsexual person.
Main photo source: PAP/Rafał Guz