Y v. Poland: Poland Did Not Violate Human Rights by Refusing Alteration of Birth Certificate After Gender Affirmation

17-02-2022

Myrthe Niemeijer

International Justice and Human Rights Researcher

Global Human Rights Defence 

Today, the European Court of Human Rights (‘ECtHR’) delivered its Chamber judgement in the case of Y v. Poland. The Court found that the Polish authorities did not err in refusing to alter the full birth certificate of the applicant (‘Y’) after his process of gender affirmation. 

Y is a Polish man who has undergone Gender Affirmation Surgery from female to male, after which he had obtained a court order to amend his birth certificate. His daughter’s birth certificate also indicates him as the father. However, his subsequent application in 2008 to have the mention of the court decision removed from the full birth certificate was dismissed, as was his application for a new birth certificate in 2011. Thus, he retained his original birth certificate, to which his change in gender was an annotation. 

Relying on Articles 8 and 14 of the European Convention on Human Rights (‘ECHR’), Y then lodged an application with the ECtHR. Regarding the right to respect for private and family life (Article 8), he argued that his inability to revise his birth certificate affected his private life. Nevertheless, the Court recognised the Polish authorities had “struck a fair balance between the different interests at stake”, acting within their wide margin of appreciation (Y v. Poland, para. 82). Accordingly, no violation of Article 8 ECHR was found. Regarding the prohibition of discrimination (Article 14), Y argued that he was discriminated against vis-à-vis adopted children, who were issued new birth certificates. The Court, however, did not find the situations to be similar, and thus, found no violation of Article 14 ECHR. These conclusions regarding Articles 8 and 14 ECHR are consistent with the Court’s judgement in Hämäläinen v. Finland. [1]

Notes:

[1] In this case, the applicant was a married affirmed woman who sought to obtain recognition of her affirmed gender in Finland. Due to legal complications regarding her marital status under Finnish law, her requests were denied. She argued this violated her rights under Articles 8, 12 and 14 ECHR. Akin to the present case, the ECtHR then relied on the requirement of a ‘fair balance’ to conclude that there had been no violation of Article 8. Further, to conclude that there had been no violation of Article 14, it referred to the dissimilarity between the situations of the applicant and the other category of persons relied on.     

Sources and further reading: 

European Court of Human Rights. (February 17, 2022). Case of Y v. Poland, (App no 74131/14). https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-215604%22]} 

European Court of Human Rights. (February 17, 2022). Press Release -Refusal to alter full birth certificate following gender reassignment was not a violation. https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-7262566-9889216%22]} 

European Court of Human Rights. (July 16, 2014). Hämäläinen v. Finland, (App no 37359/09). https://hudoc.echr.coe.int/eng#{%22appno%22:[%2237359/09%22],%22itemid%22:[%22001-145768%22]}