11 Mar The refusal to change the original birth certificate after the change of sex did not constitute a violation of the Convention

In the case of Y v. Poland (application no. 74131/14, 17.02.2022) the European Court of Human Rights held, unanimously, that there had been no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights, and no violation of Article 14 (prohibition of discrimination).

The case concerned applications by Y, a transgender man, who 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. 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 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.

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.

References from the official website of the European Court of Human Rights