A transgender man has asked for a complete modification or reissue of his birth certificate after a gender reassignment. The refusal of the authorities did not violate the ECHR
JUDGMENT
Y v. Poland 17.02.2022 (app. no. 74131/14)
SUMMARY
Gender reassignment from woman to man and birth certificates. Refusal of the authorities to completely modify his birth certificate or issue an existing new one, after the gender reassignment.
Although a court decision had been issued allowing him to modify his birth certificate to show gender reassignment, at the request of the Polish courts, the applicant requested that the gender reference be removed from his birth certificate or that a new birth certificate be issued. However, the courts rejected his request on the grounds that it was not possible to issue a new birth certificate after a gender reassignment, but that any changes were mentioned only as comments on the original birth certificate. The applicant complained that his birth certificate contained a reference to his sex at birth and that he had been discriminated against against adopted children, to whom new certificates were issued.
The Court found that the applicant was unable to prove that he had suffered any adverse consequences from the negative decisions of the national authorities. On the contrary, the authorities had managed to balance the interests at stake, acting at their own discretion, when they refused to modify the full birth certificate. There has therefore been no violation of Article 8 of the ECHR.
As regards the plea of non-discrimination, the ECtHR held that the applicant’s situation and that of the adopted children were not similar in order to claim that he had been discriminated. There has therefore been no breach of the applicant’s rights under Article 14 of the ECHR.
PROVISIONS
Article 8
Article 14
PRINCIPAL FACTS
The applicant, Y, is a Polish national who was born in 1969 and lives in the Île-de-France region.
Y underwent gender reassignment from female to male. In 1992 he obtained a court order in Poland
to amend his birth certificate to reflect this change. His daughter’s birth certificate in France
indicates him as the father.
In 2008 he applied to the Polish authorities to have the mention of the 1992 court decision removed
from the birth certificate. Following decisions by three administrative authorities, the Opole
Regional Administrative Court dismissed his application. That decision was upheld by the Supreme
Administrative Court following a cassation appeal.
In 2011 Y applied for a new birth certificate via the courts. He was unsuccessful at three levels of
jurisdiction, with the Supreme Court holding, following his cassation appeal, that it was not possible
to issue a new birth certificate following gender reassignment, and thus the changes would have to
be indicated as an annotation to the original birth certificate. Relying on Articles 8 (right to respect for private and family life) and 14 (prohibition of
discrimination), the applicant complained that his birth certificate included reference to his gender
at birth, and that he was discriminated against vis-à-vis adopted children, who were issued new birth
certificates.
THE DECISION OF THE COURT…
Article 8
The Court noted some salient facts, in particular that the applicant lived as a man and was married,
that his short-form birth certificate and identity documents indicated his reassigned gender only,
and that the long-form birth certificate was not accessible to the public and was required only in rare
circumstances. The Court was mindful of the historical importance of original birth certificates, and
the need to guarantee the reliability of civil records.
Overall, the applicant had not demonstrated any negative consequences as a result of the refusals
by the Polish authorities.
The Court ruled that the Polish authorities had acted within their broad discretion (“margin of
appreciation”), striking a balance between the relevant interests in the current case, finding no
violation of Article 8.
Article 14
The Court judged that the situation of the applicant and that of adopted children were insufficiently
similar to make the argument that he had suffered discrimination. There had been no violation of
the applicant’s rights under this Article.
