Last Updated on November 22, 2019 by LawEuro
Communicated on 10 September 2019
FIRST SECTION
Application no.74131/14
Y.
against Poland
lodged on 18 November 2014
STATEMENT OF FACTS
The applicant, Y, is a Polish national, who was born in 1969 and lives in the Paris region in France. He is represented before the Court by Ms A. Stach, a lawyer practising in Szczecin.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
At birth the applicant was registered as female. Subsequently, he successfully underwent gender reassignment procedure.
On 6 April 1992 the Warsaw District Court gave a decision and ordered that an annotation be made in the applicant’s birth certificate whereby his details regarding gender were changed from female to male and his name was changed from X. to Y.. The relevant annotations to the birth certificate were duly made.
On 28 December 1993 the applicant married K. in a civil ceremony.
On 18 August 2001 their daughter A. was born in France. Her French birth certificate indicates the applicant as her father and K. as her mother.
2. Administrative proceeding for removal of an annotation from the birth certificate
On 22 August 2005 the applicant’s lawyer asked the Prudnik Civil Status Registry (UrządStanuCywilnego) to remove from the applicant’s birth certificate the reference to the Warsaw District Court’s decision of 6 April 1992.
On 22 September 2005 the Director of the Prudnik Civil Status Registry (KierownikUrzęduStanuCywilnego) refused the applicant’s request on the ground that under section 21 of the Law on Civil Status Records (prawo o aktachstanucywilnego ) (“the 1986 Law”) any events that occurred after a birth certificate had been drawn up should be included in that certificate in the form of a “margin annotation” (wzmiankamarginesowa).
On 8 November 2005 the Opole Governor declared this decision null and void on formal grounds. The Governor considered that the application concerned the applicant’s civil status and therefore it could have been filed only by the applicant himself and not by his lawyer.
On 21 August 2006 the Minister of the Interior quashed the Governor’s decision and discontinued the proceedings.
On 29 September 2006 the Opole Governor gave a decision on the merits and upheld the decision of 22 September 2005, refusing to remove the annotation about the change of gender and first name. The Governor noted that the only annotations that could be removed were those not provided by law or in breach of personal rights.
On 26 February 2007 the Opole Regional Administrative Court dismissed the applicant’s appeal referring to the reasons given by the Governor. It held that the annotation about the applicant’s previous gender and first name could not be considered to be in breach of his personal rights.
On 16 July 2008 the Supreme Administrative Court dismissed a further cassation appeal.
3. Proceedings for a new birth certificate
On 5 September 2011 the applicant lodged a request with the Warsaw District Court to be issued a new birth certificate. He relied on the provisions of the 1986 Law concerning drawing up new birth certificates in case of adoption.
On 20 October 2011 the Warsaw District Court dismissed the applicant’s request. The court held that pursuant to sections 48 and 49 of the 1986 Law a new birth certificate could only be drawn up after adoption. In addition, it noted that civil courts had jurisdiction in cases concerning declaring a civil status act null and void, correction of a civil status act and determination of contents of such act. Since the present case did not concern any of those situations the request should be dismissed.
The applicant appealed.
On 12 February 2013 the Warsaw Regional Court dismissed his appeal. The court upheld the reasons given by the District Court. With reference to the applicant’s submissions that the first-instance court should have applied sections 48 and 49 of the 1986 Law by analogy and should have drawn up a new birth certificate, the Regional Court held that the provisions concerning civil status could not be applied by analogy.
The applicant lodged a cassation appeal.
On 28 May 2014 the Supreme Court dismissed his cassation appeal. The court considered, referring to the 1986 Law, that following gender reassignment it was not possible to draw up a new birth certificate. Any changes should be indicated as an annotation to the existing birth certificate.
4. Proceedings concerning foster care.
In 2007, K’s cousin had a baby girl A.L. On 23 March 2010 District Court in the Paris region granted custody over A.L to the applicant’s wife. The applicant submits that A.L. lives with him and his family.
B. Relevant domestic law and practice
1. The Code of Civil Procedure
The case-law of the Supreme Court provides guidelines on procedures for legal recognition of the situation of persons who have undergone gender reassignment surgeries. In order to have a person’s gender changed, he or she may lodge a claim under Article 189 of the Code of Civil Procedure, for recognition of a new sexual identity, the so called “declaratory action” (powództwo o ustalenie). This provision provides that a plaintiff may request judicial declaration as to the existence or non-existence of a legal relationship or of a right, if he or she has a legal interest therein. Anyone wishing to change their gender and name (for the civil status purposes), following a gender reassignment surgery, can do so by bringing an action against their parents on the grounds that they wrongly indicated the child’s gender at the time of birth. If the parents are dead or their whereabouts unknown, the court appoints a guardian.
2. Law on Civil Status Records
(a) Full and abridged birth certificates
The procedure concerning entries in the Polish Civil Status Register, as in force at the material time, was provided by the Law on Civil Status Records (Prawo o aktachstanucywilnego) of 29 September 1986 (“the 1986 Law”).
Following the court’s decision on recognition of a new sexual identity, an annotation is made to the birth certificate. However, the birth certificate is not changed fully. While, the abridged version (odpisskrócony) of the birth certificate indicates only the new name and the reassigned gender, the original data (gender and name) are still visible for anyone who would acquire a full version of the document (odpiszupełny).
Pursuant to section 83 of the 1986 Law, a copy of the full version of a birth certificate could be issued to the person concerned, his/her descendant, ascendant, sibling, spouse, legal representative, guardian, any person that could prove that he/she has a particular legal interest, a court, any other State institution, an association when it is in accordance with its statutory aims.
In most official situations only an abridged version of the birth certificate is required (concluding a civil marriage, issuing a death certificate, applying for an identity document or passport). Full copy of a birth certificate is required for example in the adoption procedure, proceedings for acquiring a nationality, in more complicated inheritance cases or in criminal proceedings if the court has doubts as to previous convictions.
After the annotation to the birth certificate is made, the person concerned may apply for a new personal registration number (PESEL) and new identity documents.
On 1 March 2015 the new Law on Civil Status Records of 28 November 2014 (“the 2014 Law”) entered into force. It contains similar provisions as regards issuing of the full and abridged copy of the birth certificate.
(b) Birth certificates after adoption
Pursuant to section 48 of the 1986 Law, following total adoption (adoptioplenissima) a new birth certificate is drawn up in which the birth parents’ names are replaced with those of the adoptive parents. In addition, an annotation is made on the former birth certificate. The former birth certificate cannot be revealed and no copies can be issued unless it is requested by a court in connection with a pending case.
In case of complete adoption (adoptio plena) the family court may also follow a similar procedure and draw up a new birth certificate (section 49 of the 1986 Law).
3. Legislative initiatives
On 23 July 2015 the parliament adopted the Act on Gender Recognisiton (“Ustawa o uzgodnieniupłci”). However, in October 2015 the President of Poland vetoed the bill. The act was designed to facilitate the process of gender recognition.
COMPLAINTS
1. The applicant complains under Article 8 of the Convention that the Polish authorities failed to comply with their duty to guarantee to him full legal recognition of his new identity. He refers to the fact that his previous sexual identity is disclosed on the full copy of his birth certificate and may be revealed in certain situations, for example if he initiates an adoption procedure or applies for French nationality.
2. He also complains under Article 14 in conjunction with Article 8 of the Convention that he is discriminated against in comparison to persons in similar situations. He refers in particular to the fact that following adoption a new birth certificate is issued for the adopted children. However, there is no similar procedure with regard to transsexual persons.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Article 8 of the Convention (compare, Christine Goodwin v. the United Kingdom [GC], no. 28957/95, ECHR 2002‑VI)? Reference is made in this respect to the fact that the applicant’s full birth certificate continues to indicate his previous legal gender.
2. Has the applicant suffered discrimination in the enjoyment of his Convention rights on account of being a transsexual person, contrary to Article 14 of the Convention read in conjunction with Article 8? Reference is made to the fact that the domestic law provides for a possibility to be issued with a new birth certificate in case of adoption but there is no such possibility in case of transsexual persons.
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