FIRST SECTION
CASE OF Y v. POLAND
(Application no. 74131/14)
 
 
JUDGMENT
 
Art 8 • Private and family life • Positive obligations • Transgender person unable to obtain a full birth certificate without gender reassignment reference, while its short extract and new ID documents indicate only reassigned gender • Applicant’s failure to demonstrate any ensuing sufficiently serious negative consequences or difficulties • Rare need for use of full copy of birth certificate • Potential risk of adverse consequences not capable of rendering current domestic system deficient • Fair balance struck between different interests at stake • Margin of appreciation not overstepped
Art 14 (+ Art 8) • Discrimination • Applicant not in analogous situation with adopted children who were issued a new birth certificate in the event of full adoption

 
STRASBOURG
17 February 2022
 
FINAL
 
17/05/2022
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Y v. Poland,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Marko Bošnjak, President,
 Péter Paczolay,
 Krzysztof Wojtyczek,
 Erik Wennerström,
 Raffaele Sabato,
 Lorraine Schembri Orland,
 Davor Derenčinović, judges,,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 74131/14) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Y (“the applicant”), on 18 November 2014;
the decision to give notice of the application to the Polish Government (“the Government”);
the decision not to have the applicant’s name disclosed;
the observations submitted by the respondent Government and the observations in reply submitted by the applicant;
the comments submitted by the European Centre for Law and Justice and the Helsinki Foundation for Human Rights, who were granted leave to intervene by the President of the Section;
Having deliberated in private on 25 January 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns a female to male transsexual who obtained legal gender recognition. In his application the applicant complained of a breach of his right to privacy on account of the fact that his full birth certificate still indicated his sex assigned at birth. THE FACTS
2. The applicant was born in 1969 and lives in the Paris region of France. He was represented by Ms A. Stach, a lawyer practising in Szczecin. 3. The Government were represented by their Agent, Mr J. Sobczak of the Ministry of Foreign Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case
5. At birth the applicant was registered as female. He later underwent gender reassignment. 6. On 6 April 1992 the Warsaw District Court gave a decision ordering that an annotation be made to the applicant’s birth certificate to indicate that his sex had changed from female to male and name had changed from X to Y. The relevant annotation was duly made. 7. On 28 December 1993 the applicant married K. in a civil ceremony. 8. 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. Administrative proceedingS for removal of THE annotation from the birth certificate
9. On 22 August 2005 the applicant’s lawyer asked the Prudnik Civil Registry Office (Urząd Stanu Cywilnego) to remove the reference to the Warsaw District Court’s decision of 6 April 1992 from the birth certificate. 10. On 22 September 2005 the head of the Prudnik Registry Office (Kierownik Urzędu Stanu Cywilnego) refused the applicant’s request on the grounds that, under section 21 of the Civil Status Records Act (prawo o aktach stanu cywilnego – “the 1986 Act”), any events occurring after a birth certificate had been drawn up had to be included in that certificate in the form of a “marginal annotation” (wzmianka marginesowa). 11. On 8 November 2005 the Opole Governor declared that decision null and void on formal grounds. The Governor’s decision was subsequently overturned by the Minister of the Interior on 21 August 2006. 12. 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 observed that only annotations not provided for by law or in breach of personal rights could be removed. 13. On 26 February 2007 the Opole Regional Administrative Court dismissed an appeal by the applicant, referring to the reasons given by the Governor. It held that a marginal annotation about the applicant’s gender of origin and change of name could not be considered to be in breach of his personal rights. 14. On 16 July 2008 the Supreme Administrative Court dismissed the applicant’s cassation appeal. Proceedings for a new birth certificate
15. On 5 September 2011 the applicant lodged a request with the Warsaw District Court to be issued a new birth certificate. He relied on sections 48 and 49 of the 1986 Act relating to the drawing up of new birth certificates following adoption (see paragraph 28 below). 16. On 20 October 2011 the court dismissed the applicant’s request. The court held that, pursuant to sections 48 and 49 of the 1986 Act, a new birth certificate could only be drawn up in the event of adoption of a child. In addition, it noted that the civil courts had jurisdiction to invalidate, correct and recognise the contents of a civil status document. Since the present case did not concern any of those situations, the request had to be dismissed. 17. The applicant appealed. He referred to the sensitive situation of transgender people, submitting that the authorities should have applied sections 48 and 49 of the 1986 Act by analogy. 18. On 12 February 2013 the Warsaw Regional Court dismissed his appeal. The court upheld the reasoning of 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 Act by analogy and drawn up a new birth certificate, the Regional Court held that the provisions concerning civil status could not be applied by analogy. Sections 48 and 49 of the 1986 Act listed very specific situations in which a new birth certificate could be issued. A full birth certificate reflected the situation at the time of a person’s birth. A subsequent change of gender could not be a reason to invalidate that birth certificate and draw up a new one. The court further noted that the applicant’s birth certificate had been amended to reflect his gender reassignment. 19. The applicant lodged a cassation appeal, relying, in particular, on the provisions of the Polish Constitution (Articles 32 and 47), Articles 8 and 14 of the Convention and the Court’s case-law. 20. On 28 May 2014 the Supreme Court dismissed his cassation appeal. The court considered, referring to the 1986 Act, that following gender reassignment it was not possible to draw up a new birth certificate. Any changes had to be indicated as an annotation on the existing birth certificate. The Supreme Court also noted that Parliament had been working on a bill on gender recognition. Proceedings concerning foster care
21. On 23 March 2010 a district court in the Paris region granted custody of K.’s three year old niece - A.L. to the applicant’s wife. The applicant submitted that A.L. lived with him and his family. RELEVANT LEGAL FRAMEWORK AND PRACTICE
Domestic law and practiceConstitutional provisions

22. The Constitution of the Republic of Poland of 1997 contains the following provisions relating to non-discrimination, equality of men and women and the right to privacy. Article 32
“1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities. 2. No one shall be discriminated against in political, social or economic life for any reason whatsoever.”
Article 33
“1. Men and women shall have equal rights in family, political, social and economic life in the Republic of Poland.
...”
Article 47
“Everyone shall have the right to legal protection of his [her] private and family life, of his [her] honour and good reputation and to make decisions about his [her] private life.”
The Code of Civil Procedure
23. Article 189 of the Code of Civil Procedure (“CCP”) provides as follows:
“A plaintiff may request the court to establish the existence or non-existence of a legal relationship or right, if he or she has a legal interest therein.”
The Law on Civil Status RecordsGeneral provisions

24. The procedure for making entries in the Polish civil status register, as in force at the material time, was laid down in the Act on Civil Status Records (Prawo o aktach stanu cywilnego) of 29 September 1986 (“the 1986 Act”). Section 21
“(1)  If, after the drawing up of a civil status record, events occur affecting its content or validity, the changes resulting therefrom shall be entered in the record in the form of an additional annotation. (2)  The basis for entering the information referred to in subsection 1 are final judicial decisions, final [administrative] decisions, extracts of civil status records and other documents having an impact on the content or validity of the record.
3)  Below the text of the civil status record shall be footnotes containing information on other civil status records relating to the same person.”
Birth certificates
25. The relevant provisions relating to the drawing up, issuing of copies and amendment of birth certificates read as follows:
Section 40
“(1)  A birth certificate is drawn up on the basis of a written notification of the child’s birth issued by a doctor, midwife or healthcare facility;
(2)  The birth certificate shall include:
1) the surname, forename(s) and sex of the child;
...”
Section 79
“Civil status records may be used to issue:
1)  full and short extracts of civil status records;
... ”
Section 80
“A full copy reproduces verbatim the content of the civil status record, including all additional annotations (wzmianki dodatkowe); the content of footnotes (przypiski) shall be given only at the request of the person concerned.”
Section 81
“A short extract of a civil status record states its content, taking into account the additional annotations and omitting any deleted words, paragraphs and sentences.”
Section 82
“A short extract [of a civil status record] shall include the following information:
1)  a copy of the birth certificate - the surname and forename(s), place and date of birth and the forenames and surnames of the child’s parents;
...”
Section 83
“1. Copies of civil status records and the certificates referred to in section 79 shall be issued at the request of a court or another State authority, the person whose civil status has been established in the record, his or her ascendant, descendant, sibling, spouse or legal representative. 2. Copies of civil status records and certificates confirming entries in civil status records or the lack thereof may also be issued at the request of persons other than those specified in subsection 1 who demonstrate a legal interest therein, and at the request of a social organisation, if justified by the statutory aims of that organisation and if in the public interest. A certificate of loss or destruction of a civil status record may also be issued at the request of other interested persons.”
26. In the majority of official situations, only a short extract of the birth certificate is required (for example when concluding a civil marriage, obtaining a death certificate or applying for an identity document or passport). A full copy of the birth certificate is required, for example, in the adoption process, when applying for another nationality or to change a name or surname, in complex inheritance cases or in criminal proceedings if the court has doubts as to previous convictions. 27. After the annotation is made to the birth certificate, the person concerned may apply for a new personal registration number (PESEL) and new identity documents. Adoption and civil status records
28. The relevant provisions relating to the issuing of new birth certificates in the event of adoption read as follows:
Section 48
“1   In the event of a decision on adoption to which the parents of the child have consented before a guardianship court without naming the adopter [adoptio plenissima], a new birth certificate shall be drawn up for the adoptee; in this certificate the adopters shall be entered as parents.
... 3. Upon the drawing up of a new birth certificate, an additional annotation shall be recorded in the existing birth certificate of the adoptee; the existing birth certificate of the adoptee shall not be disclosed and no copies of it shall be issued, unless requested by the court in connection with a case in which it deems it necessary. 4. Once the adoptee has reached the age of majority, he or she may request access to the part of the civil status record relating to the existing birth record.”
Section 49
“1. In the event of a decision on adoption in the manner specified in Article 121 of the Family and Custody Code [adoptio plena], a new birth certificate may be drawn up for the adoptee, in which the adopters shall be entered as parents, if the guardianship court has so decided. The provisions of [section] 47(2) to (5) shall apply accordingly.
1a. The guardianship court shall rule on the drawing up of a new birth certificate at the request of the adopter, with the consent of the adoptee [if he or she] has reached the age of thirteen, or at the request of the adoptee with the consent of the adopter. The provisions of Article 118 § 2 and 3 of the Family and Custody Code shall apply accordingly. 2. Upon the drawing up of a new birth certificate, an additional annotation shall be recorded in the existing birth certificate of the adoptee; the existing birth certificate of the adoptee shall not be disclosed and no copies of it shall be issued, unless requested by the court in connection with establishing the origin of the adoptee, recognition or termination of the adoption relationship, or in connection with other matters in which the court deems it necessary.
2a. Once the adoptee has reached the age of majority, he or she may request access to the part of the civil status record relating to the existing birth record. 3. In the event of termination of the adoption relationship, the adoptee’s new birth certificate shall be invalidated by the court in non-contentious proceedings; the additional reference to the drawing up of the new birth certificate entered in the adoptee’s existing birth certificate shall also be invalidated.”
The 2014 Act
29. On 1 March 2015 the new Act on Civil Status Records of 28 November 2014 (“the 2014 Act”) entered into force. It contains similar provisions as regards the issuing of copies and amendment of birth certificates (sections 44(1) to (3), 45(1) and 48(1)) and the drawing up of new birth certificates in the event of adoption (sections 71 and 73). Supreme Court’s case-lawDecision of 22 March 1991

30. The Supreme Court’s decision (postanowienie) of 22 March 1991, given in case no. III CRN 28/91, includes guidelines on the procedures for the legal recognition of persons who have undergone gender reassignment surgery. The Supreme Court found that recognition of gender reassignment (made by means of a declaratory judgment) did not have retroactive effect and, as such, could not lead to rectification (sprostowanie) of a person’s civil status record. However, a final judgment recognising sex reassignment could serve as a basis for making an additional entry (wpis dodatkowy) in the civil status register. Resolution of 22 September 1995
31. On 22 September 1995 the Supreme Court issued a resolution (III CZP 118/95) confirming that it was possible to lodge a claim under Article 189 of the CCP to recognise the sexual identity of a transgender person. In such cases, the parents of the person requesting gender reassignment should be defendants. If the parents were dead or their whereabouts unknown, the court should appoint a guardian. 32. This reasoning was subsequently confirmed in a number of the Supreme Court’s judgments. Legislative initiatives
33. On 23 July 2015 Parliament passed the Gender Recognition Bill (Ustawa o uzgodnieniu płci). However, in October 2015 it was vetoed by the President. It had been designed to facilitate the process of gender recognition. International materialCommissioner for Human Rights of the Council of Europe

34. On 31 August 2010 the Commissioner for Human Rights of the Council of Europe published a Human Rights Comment entitled “Forced divorce and sterilisation – a reality for many transgender persons”, in which he stated, in particular, as follows:
“All countries need to develop expeditious and transparent procedures for changing the name and gender of a transgender person on official documents, in accordance with the case-law of the European Court of Human Rights. In 2002, in Goodwin v UK, the Strasbourg Court’s Grand Chamber stressed that in the twenty first century the rights of transgender persons should be effectively protected by states. They should have the same right to personal development and to physical and moral security enjoyed by others in society. ...”
Committee of Ministers of the Council of Europe
35. On 31 March 2010 the Committee of Ministers of the Council of Europe adopted Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity. Paragraph 21 states that:
“[m]ember [S]tates should take appropriate measures to guarantee the full legal recognition of a person’s gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way; member [S]tates should also ensure, where appropriate, the corresponding recognition and changes by non-state actors with respect to key documents, such as educational or work certificates.”
Parliamentary Assembly of the Council of Europe
36. On 22 April 2015 the Parliamentary Assembly of the Council of Europe (PACE) adopted Resolution 2048 (2015) entitled “Discrimination against transgender people in Europe”. The member States were called upon, in particular, to:
“6.2.1  develop quick, transparent and accessible procedures, based on self‑determination, for changing the name and registered sex of transgender people on birth certificates, identity cards, passports, educational certificates and other similar documents; make these procedures available for all people who seek to use them, irrespective of age, medical status, financial situation or police record;”
THE LAW
Preliminary objections
37. The Government made several preliminary objections. They argued that the application was incompatible ratione personae, ratione loci and temporis with the provisions of the Convention. They further submitted that the applicant had not complied with the six-month rule laid down in Article 35 § 1 or with the rule of exhaustion of domestic remedies. Lastly, they stressed that the applicant had not suffered a significant disadvantage. Victim statusThe parties

38. The Government argued that the applicant could not be considered a “victim” for the purposes of Article 34 of the Convention. They referred to the fact that the short extract of his birth certificate and his identity documents indicated his new name and reassigned sex. Moreover, the applicant had not demonstrated that he had actually applied for French citizenship or for adoption, or that the disclosure of his full birth certificate had led to a breach of his right to respect for his private life. 39. The applicant did not submit any comments on this objection.

Outcome for Article 14: no_violation