In the gender reassignment procedure in Poland, transgender people must sue their parents. The Prosecutor General requested the Supreme Court to extend the lawsuit not only to the parents, but also to the spouse and children. The Ombudsman opposes this. This would be a departure from the “stabilized jurisprudence of the Supreme Court” – writes the Ombudsman.
There is no law in Poland that would regulate how a transgender person would correct the gender in their own birth certificate. The regulations on gender reconciliation were adopted by the parliament at the end of the term of office in 2015, but they were vetoed by President Andrzej Duda. In this situation, the legal standard was shaped by the resolutions and judgments of the Supreme Court. They stipulate that a transgender person should sue their parents to have their birth certificate changed.
On Tuesday, on the website of the Office of the Commissioner for Human Rights, it was reported that the Prosecutor General asked the Supreme Court a legal question – as it was described – “aimed at transgender people suing not only their parents, but also their spouse and children in order to agree on their gender.”
Ombudsman Marcin Wiącek decided to join the case and asked the Supreme Court to refuse to adopt the resolution requested by the prosecutor’s office. “It would be a departure from the established jurisprudence of the Supreme Court” – the statement of the Office of the Commissioner for Human Rights explained.
“Both in practice and in the jurisprudence of common courts, there is no discrepancy as to who should be sued. In almost every case, it was the parents or the guardian appointed in this place” – the Commissioner for Human Rights said.
The Ombudsman points to the jurisprudence standard
The Ombudsman reminded that on June 22, 1989 Supreme Court decided that the occurrence of transsexualism (such terminology was used at that time – editor’s note) does not give grounds to correct the gender indication in the birth certificate.
The Defender also pointed out that by the decision of 22 March 1991, the Supreme Court emphasized that the sense of belonging to a given sex is a personal right within the meaning of Article 23 of the Civil Code and its protection can be claimed in a lawsuit.
The Commissioner for Human Rights also pointed out that in the resolution of 22 September 1995, the Supreme Court stated that a change of gender designation is possible only on the basis of a judgment issued in a trial in which the plaintiff’s parents are the defendants.
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In his position for the Supreme Court, Marcin Wiącek emphasized that the second decade of the 21st century brought further issues regarding this procedure.
In the judgment of 6 December 2013 – as the Commissioner for Prosecutor reminded – the Supreme Court found it necessary to sue in gender determination proceedings also the spouse of a transgender person, provided that the plaintiff is married at the time of filing the lawsuit, as well as her children.
The Commissioner for Human Rights admitted that “this judgment was commented on as a change in the position of the Supreme Court regarding the group of defendants in the trial”, but stressed that “it is not fully justified”. The decision was made in a specific factual situation, because in the course of the proceedings it was not established that the claimant was still married and had children from it, he explained.
“Therefore, after the judgment establishing that she was a woman became final, a same-sex marriage, which was excluded by Polish law, was established. The prosecutor therefore asked the court to resume the proceedings. The district court dismissed the claim to determine the sex due to the fact that the plaintiff was married.
Ombudsman: bringing a lawsuit against children is unfounded
“According to the interpretation of the Supreme Court, the indication of parents as the defendant is not a manifestation of the assumption that they are legally interested in how their child’s right to gender is exercised, but only serves to formally comply with the principle of two-sidedness of the process” – stated the Commissioner for Human Rights.
He pointed out that in the judgment of January 10, 2019, the Supreme Court decided that filing a lawsuit additionally against the children of the person seeking gender determination would be completely unjustified.
He also emphasized that due to the fact that Polish law does not provide for same-sex marriages, the marital status of the claimant in gender determination proceedings should be examined by the court each time.
“In practice, married transgender people choose to dissolve their marriage through divorce before filing a gender determination lawsuit,” he added.
Main photo source: TVN24