The landmark ruling of the Constitutional Court abolished the legal regulation of the necessity to undergo sterilization in the event of official sex change, as enshrined in the provisions of Section 29(1) of Act No. 89/2012 Coll., the Civil Code (hereinafter referred to as the "CC"), as well as the provisions of Section 21(1) of Act No. 373/2011 Coll., on Specific Health Services (hereinafter referred to as the "SHS"). In this article we will look at how the legal process of gender reassignment looks like so far, at its legal conditions and how the Constitutional Court has approached this topic in its ruling Pl. ÚS 52/23 (hereinafter referred to as the "current ruling").
The legal regulation of gender reassignment is enshrined in the provisions of Section 29 of the Civil Code, which stipulates that in order for a man or woman to change his or her gender, he or she must undergo a surgical procedure while being deprived of his or her reproductive functions, i.e. sterilisation of the person (i.e. Castration), which is carried out either by hysterectomy (removal of the uterus) or orchiectomy (removal of the testicles), and transformation of the genital organs, which involves the following surgical procedures: In the case of trans men (female-to-male), these are mainly mastectomy (removal of the breasts), hysterectomy (removal of the uterus), bilateral ovariectomy (removal of the ovaries), metaidoioplasty, phalloplasty, scrotoplasty and urethroplasty (creation of a neopenis and scrotum). In the case of trans women (male to female), this includes orchiectomy (removal of testicles), penectomy (removal of penis) and creation of neovagina (includes vaginoplasty, clitoridoplasty and labioplasty).
Similar conditions are also set out in Section 21 of the SHS, which defines gender reassignment in its paragraph 1 as the performance of medical procedures intended to effect a change of sex by means of a surgical procedure while rendering reproductive function impossible.
Thus, a necessary and de facto "basic" condition for gender reassignment is the undergoing of a medical procedure that significantly interferes with the physical integrity of the person concerned and is not conditional on his or her actual willingness to undergo the procedure, i.e. if the person concerned insists on gender reassignment, it is necessary, in the context of the current legislation, to carry out this medical procedure.
This modification is then linked to the change of the person's name under the provisions of Section 72a of Act No. 301/2000 Coll., on civil registers, names and surnames and on amendments to certain related acts. It should be noted here that this regulation does not, however, contain the condition of medical intervention, but it does work with the concept of initiating treatment for gender reassignment and does not specify it further.
First of all, it should be pointed out that the earlier (negative) ruling of the Constitutional Court in Case No. Pl. ÚS 2/20 of 9 November 2021 (hereinafter referred to as the "earlier ruling"), which was also directed in its proposal against the above-mentioned legislation. However, the Constitutional Court did not address the question of the constitutionality of the condition to undergo sterilization/castration in connection with gender reassignment and could be said to have bypassed this issue by addressing only the question of changing the birth number of trans persons.
The Constitutional Court justified the possibility of re-addressing the issue of the constitutionality of the current gender reassignment legislation precisely because in 2021 the Constitutional Court avoided and did not deal with this issue at all, or dealt only with the constitutionality of the legal form of the birth number. Thus, in the present ruling, there was no obstacle to the case being heard precisely in view of the above.
In its current ruling, the Constitutional Court assessed the legitimacy and proportionality of the provisions in question and their impact on trans persons (with a focus on section 29(1) of the CC and section 21/1 of the SHS). The Constitutional Court concluded that the current legislation constitutes an interference with a person's physical integrity as well as with his or her right to self-determination and personal autonomy, given that the State requires surgical procedures to be performed in order for a person to be recognised as a trans person and that without the required surgical procedures, a person cannot fully perform in accordance with his or her seriously perceived identity, overall, the current legislation is contrary to Article 7 of the Charter of Fundamental Rights and Freedoms in conjunction with Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
It was also pointed out in that judgment that, under the current legislation, people who do not wish to have their genitals transformed and their reproductive function rendered impossible must also undergo surgery, which is contrary to the prohibition on treating them as objects and not as human beings.
The Constitutional Court also acknowledged that it is legitimate for the legislator to ensure legal certainty in preventing arbitrary gender reassignment "according to mood" as well as purposeful reassignment.
A frequent argument in favour of maintaining the current legislation is that otherwise the sexes will change "as if on a treadmill". However, the Constitutional Court notes that more gentle ways of ensuring legal certainty can be found, e.g. diagnostic opinions of several independent specialist sexologists demonstrating the irreversibility of the individual's beliefs regarding his or her gender change, supplemented by a time test. In the view of the Constitutional Court, it is manifestly unreasonable to require an invasive and irreversible procedure, which is also risky and endangers the health of the persons concerned, to be carried out without exception simply to preserve legal certainty and stability.
The Constitutional Court therefore concluded in its examination that the first sentence of Section 29(1) CC should be deleted and only the rebuttable presumption that the health care provider has issued a certificate should be retained. Further, the first sentence should also be deleted from section 21(1) SHS, thereby making the legislation consistent across the provisions.
It is also important to note that the Constitutional Court has postponed the implementation of this ruling, i.e. it has given the legislator time to make legislative changes until 30 June 2025. In the meantime, or until the new legislation comes into force, the existing statutory conditions for gender reassignment must be applied as a valid and effective part of the legal order.
The condition of sterilization (or castration) has been reproached for a long time, including by the European Committee of Social Rights in its decision in the case of Transgender Europe and ILGA- Europe v. Czech Republic of 15 May 2018, complaint No. 117/2015.
For the overall context, it is also important to mention that the Czech Republic is one of the few European countries where the legal requirement of medical intervention for gender reassignment persists. Of the 27 EU Member States, only 6 either do not allow official sex change at all or make it conditional on sterilisation or castration (Bulgaria, the Czech Republic, Latvia, Romania and Slovakia).
The Constitutional Court thus favoured a long-awaited change in the regulation of gender reassignment, while leaving room for the legislature to make reasonable changes to the current legislation.
Responsible lawyer: Mgr. Mgr. Barbora Dlabolová, Kateřina Chaloupková contributed to this article.