The Constitutional Court found No 112 / 2022 Coll.
The Constitutional Court found of 9 November 2021 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
05.05.2022
112
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. Pl. ÚS 2 / 20 on 9 November 2021 in plenary composed of the President of the Court of Paul Rychetský and the Judges Louis David, Jaroslav Fenyk, Josef Fiale, Jan Filip, Jaromír Jirsy, Tomáš Lichovník, Radovan Suchánek, Pavel Šámal, Kateřina Šitáková, Vojtěho Šimíček, Milady Tomková, David Uhlíř and Jiří Zemánek on the proposal T. H., represented by the lawyer JUDr. Maroš Matiasek, LLM, based on Ovenecká 33, Praha 7 - Bubeneč, on the cancellation of § 29 paragraph 1 of Act 89 / 2012 Coll., Civil Act, § 21 (1).
as follows:
Motion denied.
Reasons
1. The Constitutional Complaints brought before the Constitutional Court under point II.II of the ÚS 2460 / 19 challenge the Supreme Administrative Court judgment No 199 / 2018-37 of 30.5.2019, the judgment of the Municipal Court in Prague No j.3 A 153 / 2017-35 of 14.5.2018 and the procedure of the Ministry of the Interior of the Ministry of the Interior in not initiating the procedure for the change of the birth number and in not amending the applicant's birth number. The constitutional complaint was linked by the applicant to the proposal to repeal § 29 (1) of Act No. 89 / 2012 Coll., Civil Code, § 21 (1) of Act No. 373 / 2011 Coll., on Specific Health Services, and § 13 (3) of Act No. 133 / 2000 Coll., on the registration of residents and birth numbers and on the amendment of certain laws (the Act on the Registration of Residents), as amended, in the words "in women plus 50,". By order No 2460 / 19-71 of 11.2.2020 (decision of the Constitutional Court are available at https: / / nalus.ujud.cz) II, the Senate of the Constitutional Court suspended the proceedings for a constitutional complaint, and the application for annulment of the contested provisions was referred by the Constitutional Court pursuant to § 78 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, to the decision pursuant to Article 87 (1) (a) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution).
2. The appellant, who claims in a constitutional complaint that he does not feel like being a man or a woman (see below), prefers to be named in the female family ("the complainant"), in which he was also identified in the judgment of the Municipal Court ("the applicant"), in contrast, the Supreme Administrative Court chose the male family ("the applicant"). The Constitutional Court notes that the Czech language does not yet have a consistently established name, which would express that the natural person in question is neither a man nor a woman. In Czech, including regulations that are part of constitutional order, the so-called generic masculinum (here "the promoter") is nevertheless used, which is neutral in terms of biological genus. Its use as a spokesperson for the biological family of the person concerned does not take any position (for example, some English-written academic texts use generic femininum), and the grammatical family is not always dependent on the biological family in Czech.
The facts and legal circumstances of the case
3. The designer has been treated since birth as a male. He got a man's name (he then had it changed) and as a man he was also enrolled in the mantle. The applicant was not assigned a birth number in the form used for women (see at the time of his birth effective § 1 (2) of Decree No. 55 / 1976 Coll., on the birth number; now § 13 (3) of the Act on the registration of residents). With male sex, the plaintiff does not identify. He is not considered a man and is not considered a woman, but a person of the so-called neutral sex. But if the choice is necessary, he prefers to be considered a woman. The applicant did not undergo the procedures used for the operational sex change as it did not consider them necessary; In his words, he is undergoing hormonal treatment and has undergone some aesthetic procedures.
4. The appellant sought to change his birth number to neutral, possibly female, and repeatedly contacted the Ministry of the Interior ("the Ministry '), which, however, did not find compliance with the conditions for initiating the procedure for changing the birth number. According to the Ministry, the appellant did not comply with the facts that would justify a change in the birth number (§ 17 (2) of the Act on the registration of residents). The procedure of the Ministry was challenged by the appellant by a constitutional complaint, which the Constitutional Court rejected as inadmissible by a decision of the Constitutional Court on 15 November 2016 in order to not use the procedural means of protection of the appellant's rights. At the same time, the action of the Ministry was challenged by the appellant by an action for protection against unlawful interference, instruction or coercion of an administrative authority rejected by the Municipal Court in Prague by judgment No 3 A 153 / 2017-35. The appellant lodged a complaint against that judgment, which the Supreme Administrative Court rejected by judgment No 199 / 2018-37, inter alia, that the conditions for the legal change of sex in the Czech Republic which the appellant did not comply with the constitutional order. Against these judicial decisions and the procedure of the Ministry of Interior, the appellant lodged a constitutional complaint, with which he joined the motion for annulment in the heading of those legal provisions, which was referred by the Chamber responsible to plenary.
Arguments of the appellant
5. According to the appellant, the application of the contested provisions has in particular infringed his right to physical and mental integrity, the right not to be subjected to maltreatment and the right to private life. In this context, the appellant refers to Article 7 (1) and (2) of the Charter of Fundamental Rights ("the Charter ') and Articles 3 and 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms (" the Convention').
6. The plaintiff claims respect for sexual self-identification, which is intended to "reconcile his true perceived sex and... the sex registered by the state." According to the appellant, "the manifestations of a true perceived sex" can be different, from the operational transformation of sex organs to hormonal therapy to aesthetic adjustment of the outside. "
7. The appellant points out that surgical sterilisation as a condition for gender change is, according to the judgment of the European Court of Human Rights in Case A. P., Garçon and Nicot v France of 6 April 2017, complaint No 79885 / 12, 52471 / 13 and 52596 / 13, contrary to Article 8 of the Convention. The contested legislation linking surgical changes to sexual organs and sex changes, according to the applicant, does not pursue a legitimate objective and is disproportionate, based on the misconception that only surgical sex changes are a sign of a real "trans-human." However, undergoing such procedures is not medically necessary in all cases. Thus, it is alleged that the legislation reflects only social pressure that only male and female bodies should exist in line with the social standard.
8. The author also deals with the so-called neutral sex. It points out that the Czech legal order does not know them and gives examples of the countries in which it was introduced. The Czech Republic is said not to force the plaintiffs to choose between male and female sex alone.
Proceedings before the Constitutional Court
9. The Constitutional Court called on the Chamber of Deputies and the Senate of the Parliament of the Czech Republic as a chamber of the party to the proceedings to comment on the application.
10. In its observations, the Chamber of Deputies describes the legislative process, with all the laws of which the contested provisions are part being approved by the necessary majority of Members, signed by the relevant constitutional authorities and duly declared. The legislature acted in the belief that the laws adopted were in accordance with constitutional order.
11. After recalling the appellant's argument, the Senate also describes the legislative process leading to the adoption of the laws concerned.
12. The Constitutional Court, in accordance with Article 69 (2) and (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court"), also sent the proposal to the Government and the Ombudsman, which was entitled to intervene in the capacity of interveners and to comment on the application.
13. The Government exercised its right and proposed to the Constitutional Court to reject the application for annulment of the contested provisions. In general, the Government deals with the issue of "trans-persons' and the interpretation of Article 29 (1) of the Civil Code in terms of what action must be taken in accordance with it. According to the government, gender change is medically understood as a change in the external sexual characteristics of a person, not as a legal recognition of the gender identity of an individual. The shift from objective gender to subjective is, according to the Government, a matter of fundamental importance, to which there is no social and professional agreement in the Czech Republic. The Government considers it necessary that the change of this kind should be subject to a social and professional debate to which the legislator should respond. If the contested provisions are repealed by the Constitutional Court, the Government considers that this will be a paradigm change of legislation and, as a result, compliance with the proposal could interfere with the basic parameters of the social order.
14. At that time, the Ombudsman Mgr. Anna Shabat, Ph.D., also joined the proceedings as an intervener. In its view, the application for annulment of Article 29 (1) of the Civil Code and Article 21 (1) of the Law on Specific Health Services should be complied with as they conflict, inter alia, with the right to the inviolability of a person under Article 7 (1) of the Charter, which implies that, without free and informed consent, it is not possible to interfere with the physical integrity of a person.
15. Mgr. Anna Shabato, Ph.D., ended the day after she used the Ombudsman's authority to intervene as an intervener. On 19 February 2020, JUDr. Stanislav Křicek took office, who, as the Ombudsman, waived his status as an intervener in accordance with Article 28 (2) of the Constitutional Court Act. This does not mean that the Constitutional Court could not take into account the observations sent by the previous Ombudsman and the arguments contained therein.
16. The observations received were sent to the appellant in the light of a possible reply. The appellant exercised his right and referred in a reply to the legislation in other countries, recalled the conclusions of the European Committee on Social Rights and other international bodies and stated that the European Court of Human Rights in the judgment in Y.T. v Bulgaria of 9 July 2020, complaint No 41701 / 16, explained that the public interest justifying the restriction of the right of trans persons to recognise their sexual identity must be specified and assessed with that right.
17. The Constitutional Court subsequently requested the opinion of the expert board of the Ministry of Health for the implementation of the sex change of transsexual patients (Section 22 (1) of the Act on Specific Health Services). He also requested a statement as an amici curiae association Czech Medical Society J. E. Purkyně, Z., Sexuological Department of Faculty Hospital Brno and Sexuological Institute of General Faculty Hospital in Prague and 1st Faculty of Medicine of Charles University. The World Health Organisation has also been alerted to the possibility of expressing itself as an amicus curiae but has not used it. Neither did the Institute of Sexology of Psychiatric Clinic of the General Faculty Hospital. The other addresses submitted identical answers to the questions of the Constitutional Court after prior consultation in which they expressed their views on transsexuality, diagnosis and classification according to the International Classification of Diseases and access to the patient.
18. According to the experts, the overwhelming majority of patients, apart from accepting the social role of the opposite biological sex, also want to change the somatic appearance in line with their feelings. In general, according to the respondents, it is not appropriate, possible or necessary for the patient to have any surgery if he does not wish to. All those who responded to the call from the Constitutional Court agreed that the applicable sex change arrangements were in line with current medical needs.
19. The observations of the Constitutional Court were also sent to the Association for Family, p. According to the opinion, there is no consensus among experts on access to "trans persons" and allowing gender change without surgery would be able to significantly undermine public policy.
20. The Constitutional Court did not expect further clarification of the case from the oral hearing, therefore it abandoned it under Paragraph 44 of the Constitutional Court Act.
21. The Judge-Rapporteur was originally appointed Kateřina Šimáková, who, at the plenary meeting in private, submitted a proposal for a finding which would cancel Paragraph 29 (1) of the First Civil Code and reject the remainder of the proposal for the inadmissibility of the appellant. According to the draft finding presented in this way, Paragraph 29 (1) of the First Civil Code was to be contrary to Article 7 (1) of the Charter, since, if the legislature provided for gender change as a condition for sterilisation, it should have chosen a method of sterilisation that interferes with the physical integrity at least. The draft decision was not adopted in a private session of plenary because it did not obtain the necessary majority of the votes, which is seen in the case-law of the Constitutional Court as the rejection of the application [cf. the findings of the Constitutional Court sp. zn. Pursuant to Article 55 of the Constitutional Court Act, in conjunction with Article 5 (9) of the Official Journal of the Constitutional Court (No Org. 47 / 21), the President of the Constitutional Court appointed the rapporteur, Milada Tomková, as the new Judge.
Text of the contested provisions
22. Paragraph 29 (1) of Act No. 89 / 2012 Coll., Civil Code, reads:
"A change in the sex of a person occurs through surgery while preventing reproductive function and transforming sex organs. The date of gender change shall be deemed to be the date specified in the certificate issued by the health service provider. ';
23. Paragraph 21 (1) of Act No 373 / 2011 Coll., on Specific Health Services, reads:
"A change in the sex of transsexual patients for the purposes of this law means the performance of a health performance whose purpose is to perform a sex change by surgery while preventing reproductive function. A transsexual patient means a person in whom there is a permanent mismatch between a mental and physical gender (hereinafter referred to as a sexual identification disorder). '
24. Paragraph 13 (3) of Act No. 133 / 2000 Coll., on the registration of residents and birth numbers and on the amendment of certain laws (the Act on the registration of residents), as amended, which proposes the abolition of the words "for women increased by 50," reads:
"A birth number is a ten-digit number that is divisible by eleven in full. The first double digit expresses the last two digits of the year of birth, the second double digit expresses the month of birth, for women plus 50, the third double digit expresses the day of birth. A four-digit ending is a distinguishing feature of natural persons born on the same calendar day. '
Substantial assessment
Review of the procedure for the adoption of the contested provisions
25. The Constitutional Court pursuant to § 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., also assesses whether the contested legal provisions have been adopted and issued within the limits of the Constitution laid down by competence and by the constitutional procedure. There were no doubts as to the constitutionality of the contested provisions in the proceedings, nor did the appellant or any other party or intervener raise any deficiencies in the legislative procedure.
Assessment of the constitutionality of the contested provisions
26. The Constitutional Court notes, first of all, that the appellant's argument - as well as the Ombudsman's argument - focused primarily on the assessment of the constitutionality of the conditions under which there is a change of sex in the Czech Republic (which is in this finding the sex of the State-registered), namely the assessment of the constitutionality of § 29 (1) of the First Civil Code. Accordingly, it was precisely this provision that was the subject of the argument of an unacceptable proposal for a derogatory finding, which focused mostly on cases of persons with so-called sexual incongruence who wish to live and be accepted as members of the opposite sex. This argument, however, is both legally and factually wrong with the nature of the case from which the proposal under examination arose, although, in accordance with the settled case law of the Constitutional Court, there must be a close link between the constitutional complaint contested by the decision, measure or other intervention of the public authority and the law or provisions proposed for annulment, in the sense that there would be no legal act of public authority as a consequence [see, for example, the finding of sp. zn.
27. The appellant does not, in his own words, feel the desire to live and be accepted as a member of the opposite sex. The appellant - legally speaking, a man - does not feel like a man, but does not feel like a woman. As it states, "feels like a neutral person without an Associated Sex." Thus, any obstacle to the appellant being able to express itself in accordance with its sex does not lie in Paragraph 29 (1) of the Civil Code, since it merely states when there is a legal change of one sex to another; its abolition would not lead to the creation of a completely new, third-sex, or the creation of a "neutral category," which would correspond to the appellant's feelings in his words.
28. It also follows from the above that the appellant did not comply with the condition for the change of the birth number under § 17 (2) (d) of the Civil Code, i.e. "there was a change of sex 'before the application to initiate the procedure for the change of birth number was made, regardless of § 29 (1) of the Civil Code. If the applicant requested a change in the birth number in such a way as to make it clear that he is neither male nor female (so-called neutral), the modified condition of gender change was not relevant in Paragraph 29 (1) of the Civil Code for resolving the matter, since" gender change' in the Czech legal order means a change from male to female to male. No other sex or other form of gender or gender identification in the Czech Republic is regulated and the Constitutional Court, as the so-called negative legislator, cannot change anything by repealing Paragraph 29 (1) of the Civil Code.
29. The appellant put forward a proposal to initiate the procedure to change the birth number, claiming that he is not a man or a woman, but someone else (sometimes referred to as an "agent '), and, if necessary, choosing between male and female sex would prefer the sex of a woman, even if she is not considered a woman. However, the procedure for changing the birth number does not serve, nor can it serve as a basis for applicants to decide whether or not they are a man, a woman or a third person, but only towards the objective of recording certain facts relating to the identification of a natural person according to the state of birth or to the registration of a change arising from surgery within the meaning of Article 29 (1) of the Civil Code. When considering whether to initiate a procedure to change the birth number, the administrative authority cannot examine whether a" case of necessity' has occurred, and therefore the appellant already wants to be a woman.
30. For the reasons stated, another fact is also apparent, which underlines the range of arguments put forward by the derogatory reasons from the case on which the derogation should take place. The subject of the proceedings from which the proposal arose was not a change in sex, but a change in the birth number. This is the only thing that the administrative authority and administrative courts could have made a binding decision to record (if a change of birth number was initiated at all) and the appellant asked for a decision to be taken.
31. Consideration of whether the medical procedures recognised by Paragraph 29 (1) of the Civil Code as leading to gender change are sufficiently identifiable, or whether they need to be, or are appropriate, necessary or proportionate, therefore appear superfluous to the Constitutional Court in the light of the above. There is no point in dealing with the specific conditions for changing sex from male to female on the basis of a case of a plaintiff who was not born, is not considered a woman, and has not yet decided that he wants to change sex to female at all. All the more so, if his proposal came from a procedure in which he only requested a change of birth number.
32. It is clear that Article 21 (1) of the Law on Specific Health Services could not be considered as relevant in the present case, since it primarily serves to adjust the conditions under which operational gender change is provided as a health service. The applicant has not undergone such a health service and does not wish to undergo it.
33. Thus, as has already been said, the core of the dispute from which the proposal under examination came was the resemblance of a birth figure. The only one of the provisions under appeal is in accordance with Article 13 (3) of the Act on the registration of residents in which the appellant seeks the abolition of the words "women plus 50," It could be concluded from the proposal thus formulated that the appellant sees inconstitutionality as distinguishing the birth number between men and women. However, to illustrate the situation, the Constitutional Court points to the constitutional complaint of the appellant, with which the application for annulment of the provision in question is linked and which shows that the appellant is not sure what it is actually trying to achieve.
34. In the petition for a constitutional complaint, the appellant suggested that the Constitutional Court prohibit the Ministry of the Interior from continuing to violate its fundamental rights "by not initiating proceedings for the amendment of the birth number [the applicant] and not to change the birth number [the appellant] to neutral form ', while at the same time the Constitutional Court should repeal Article 13 (3) of the Law on the registration of citizens in words" increased by 50, "for a conflict with constitutional order. The appellant therefore requires the Constitutional Court to abolish the" female "shape of the birth number while forcing the administrative authority to change the appellant's birth number from" male "to" neutral. "According to the appellant, there should therefore be a" male "shape of the birth number and a" neutral "shape of the birth number, whereas the" female "shape of the birth number should not exist as unconstitutional. Not only that, in order to require his birth number to be inserted into the" neutral "shape, the promoter formalises a possible petit, so that his birth number is changed into" female "(staying on the design" female "shape of the birth number cancel). The appellant therefore requires the Constitutional Court to force the Ministry of the Interior to change the designer's birth number into a" female "shape while removing the" female "shape of the birth number as unconstitutional. In other words, the appellant finds it unconstitutional that it does not have a birth number in the form it finds unconstitutional.
35. However, if the Constitutional Court omits this internal inconsistency of the appellant's argument, the proposal to abolish Paragraph 13 (3) of the Act on the registration of residents in "women plus 50," the following can be said.
36. The birth number is a unique number of citizens of the Czech Republic (and possibly other persons having a relationship with the Czech Republic), which is used primarily for registration and identification purposes. It is the only generally used identifier that every citizen of the Czech Republic has and is unique to every citizen. According to Article 13 (3) of the Act on the registration of residents, the birth number is essentially a ten-digit number divisible by eleven, whose first two digits represent the last two digits of the year of birth, the second two-digit month of birth and the third two-digit date of birth. The tip behind the slash is then a distinguishing sign of people born on the same calendar day. In women, the monthly double digits increase by 50. The birth date of the person and his sex can therefore be derived from the birth number.
37. Although it is a basic identifier, it is not of a constitutional nature in relation to the information that can be derived from it on the carrier. The change of birth number does not in itself change the sex or date of birth. Similarly, by cancelling a double-digit increase of 50 per month for the birth number of women (that is to say, by complying with the proposal under consideration), it would be that the birth number did not provide information on the sex of the carrier, but would not mean that the sex in the Czech Republic suddenly ceased to exist or that it would change its understanding as binary characteristics of the human species. Nor would it be possible for gender information to cease to be recorded in any way, for example in birth certificates, citizen cards or passports.
38. In general, the Constitutional Court does not find anything unconstitutional de constitutione lats in the fact that the State records information about the sex of the individual or that the sex is shared in binary terms within the birth numbers.
39. In the Czech Republic, people are divided into women and men. This understanding of the binary existence of a human species does not come from the will of the state in terms of the will of the public authority, as public authority merely accepted it as a social reality. After all, the sex itself is not explicitly defined in the Czech legal order. The legislation does not explicitly state that there are only two sexes in the Czech Republic, namely male and female, because this is already due to the word "sex" itself, as is commonly understood in the Czech language. Nor is it explicitly stated what characteristics define men and what women, for a similar reason - words have meaning and the terms "man" and "woman" are sufficiently understandable in themselves and, in most individuals, classification into these two categories, which occur immediately after birth, does not cause problems (for example, no human definition needed). Moreover, the admission of legal sex change was not the result of an act of the legislator, since even in this case, the legislator rather accepted and subsequently codified a practice which, even without explicit legislation, began to recognise gender change as a result of certain operational interventions. In other words, public power in the Czech Republic is largely passive and limited to codification and legal overarching of what the company itself has achieved.
40. The existence of men and women also takes note of the constitutional order and certain international human rights treaties that the Czech Republic is bound by. According to Article 29 (1) of the Charter, "women, adolescents and disabled persons are entitled to increased health protection at work and special working conditions'. In accordance with Article 12 of the Convention on the Protection of Human Rights and Fundamental Freedoms," men and women, fit for marriage, have the right to marry and establish a family in accordance with national laws governing the exercise of that right '. The United Nations Convention on the Elimination of All Forms of Discrimination against Women (published under No. 62 / 1987 Coll.) deals fully with the special status of women and also recognises the adoption of special measures to accelerate the achievement of de facto equality between men and women.
41. With gender, and with gender, binary-understood, then there's underconstitutional law. Thus, Section 655 of the Civil Code already defines marriage as a "permanent union of men and women." In accordance with Section 7 of Act No. 169 / 1999 Coll., on the execution of prison sentences and on the amendment of certain related laws, as amended, "the sentenced men from the convicted women are separated." Similarly, according to Article 30 of Act No. 273 / 2008 Coll., on the Police of the Czech Republic, separate persons of "different sex" are placed in the cell. According to Section 83b (3) of Act No. 141 / 1961 Coll., on Criminal Procedure of the Court (Criminal Code), as amended, then "a person of the same sex always carries out a personal examination '. The same applies to personal examination according to § 203 of Act No. 280 / 2009 Coll., Tax Code. In this context, reference can also be made to the finding of sp. zn. III. The Constitutional Court also took into account, when seeking infringement of the complainant's fundamental rights, that" there is a legitimate interest in carrying out certain acts involving the intimate sphere of the persons concerned, by a person of the same sex'.
42. Of course, the difference between men and women in the Czech Republic is made daily within the framework of purely private law activities. Thus there are sport competitions organised exclusively for women (the category of women has virtually every sport), men and women have separate dressing rooms or toilets, some train sets have women's coupons etc. In the context of sport competitions, the World Anti-Doping Agency (WADA) standards for urine sampling, which require a same-sex controller (standards available at https: / / www.wada-ama.org), can also be added.
43. Therefore, recognition of the existence of women and men is not in itself problematic from a constitutional legal point of view, nor does it raise constitutional doubts without any further consideration that men and women are treated differently or separately in certain necessary cases. After all, the Constitutional Court confirmed this, inter alia, in the finding of the sp. zn. Pl. ÚS 42 / 04 of 6.6.2006 (N 112 / 41 SbNU 379; 405 / 2006 Coll.), in which it stated that the distinction between men and women is constitutionally conformal, if "based on objective and reasonable reasons and considerations'.
44. The requirement that there be objective and reasonable grounds for different treatment is reflected in the constitutional principle of equality, arising primarily from Article 1 of the Charter, which guarantees the equality of people in dignity and rights, and from Article 3 (1) of the Charter, according to which fundamental rights and freedoms are guaranteed to all without distinction (inter alia) sex. In its findings sp. zn. In the finding sp. zn. Pl. ÚS 15 / 02 of 21.1.2003 (N 11 / 29 SbNU 79; 40 / 2003 Sb.), the Constitutional Court also referred to the case law of the Constitutional Court of the Czech and Slovak Federal Republic, according to which equality requires the removal of unjustified differences.
45. Thus, if it is accepted by the constitutionally and even by constitutional order that people are divided into men and women and that this division has and has certain legal or practical implications, some of which have been outlined above, it seems logical that the state also records information about sex, i.e. whether a man is a man or a woman in a form. It cannot be said, on the one hand, that the State may treat men and women differently in certain cases and that in some cases women are subject to increased constitutional protection (Article 29 (1) of the Charter), while preventing the State from recording gender data.
46. The question, of course, is whether this recording should take place in the birth figures. However, the Constitutional Court does not find in principle a constitutional reason why gender cannot be recorded within the unique number identifier assigned to a person at birth. In this context, however, it is appropriate to point out that the birth number is used in a variety of private and public relations. Given the structure of the birth number, this means that you communicate information about your sex and the date of birth, even when it may not appear necessary. However, this is not so much a question of the structure of the birth number, but of its use. The solution cannot consist of a court-led change in the form of birth numbers, but of a system legislator adopted by the regulation that will provide protection for the privacy of individuals while ensuring their reliable identification. This system solution is already being prepared at legislative level, with the fact that the use of the birth number is to be phased out gradually, which is also being reflected in the legislation already adopted [see for example Sections 5 (1) (a) and 72 (10) of Act No 269 / 2021 Coll., on Civil Documents].
47. Nor does it change the argument that the sex that can be derived from the birth number may not always correspond to the sex with which a person is identified internally. In his proposal, the appellant argued by requiring respect for sexual self-identification (sometimes referred to as the right to gender identity), which, as part of the right to self-determination and personal autonomy, is to find its constitutional status in Article 7 (1) of the Charter, which guarantees the integrity of the person and his privacy. According to the appellant, Article 7 (1) The Charter also guarantees the right to express its sexual identity on the outside - a consistently experienced affiliation to a gender other than that assigned to individuals according to biological characteristics.
48. However, the purpose of the contested provision governing the birth number of women is not to present the sex with which the carrier identifies the birth number. The information about the sex of a person that can be derived from the birth number corresponds to the sex of an official (assigned at birth or after the procedure under Paragraph 29 (1) of the Civil Code) and does not indicate any internal feelings of a person. It is not, therefore, that the sex in the birth number is contrary to the inner feelings of man, but simply contains information about facts other than the carrier's "sexual identity." In some ways, by capturing information about the sex of an individual, the state does not determine how an individual looks at or looks at itself.
49. If the Constitutional Court has reached the conclusion above that it does not contradict the constitutional order, if it contains the natural number of the information on the sex of its carrier, it has done so, inter alia, because such information may be necessary in certain cases in order to fulfil the functions of the State. However, it is the information about the sex that the state registers that is based on the generally understood importance of sex in the Czech Republic that is needed. The above examples, in which there is a difference between men and women in law or in fact, illustrate this. All these examples of the distinction between men and women have a reason and origin in the different biological characteristics of men and women from whom gender is determined and for which the distinction between men and women may in some cases appear desirable or necessary. The distinction between the sex in the birth number and the legal reality, and indirectly the social reality, follows.
50. On the contrary, the information about the gender with which an individual is internally identified is essentially insignificant and different treatment of people according to this characteristic would lack the objective and reasonable grounds for different treatment of constitutional order, as the Constitutional Court stated in the already cited finding of sp. zl. ÚS 42 / 04. In the course of the proceedings, no logical explanation was presented to the Constitutional Court as to what should be used to divide people into those who identify themselves as men and those who identify themselves as women. Such categories do not originate in legal or social reality.
51. For example, if there is a legitimate interest in the implementation in the Czech Republic of certain acts affecting the intimate sphere of the persons concerned by the same sex (finding of the Constitutional Court sp. zn. III. ÚS 309 / 16), it seems rather difficult to argue that this interest is respected if the person of the opposite sex is present by the examination, which is, however, identified with the sex of the subject. The same problem would be the case for women coupons, which, on the one hand, would be accepted to serve to induce a sense of passenger safety (see the Ombudsman's press release of 16 March 2018, available on https: / / www.protece.cz), but which is allegedly not disturbed by the presence of men identified as women. The sense of women's prisons, in which even male persons who only identify themselves as women would be placed, would also be somewhat unclear, just as it is unclear how to achieve the original purpose in terms of conditions induced by a possible derogation of the Constitutional Court based on the appellant's argument. The same applies to inspections according to the criminal rules (Section 83b (3) of the criminal rules mentioned above), but also to separate dressing rooms, showers, toilets, etc.
52. It is therefore logical that the birth number contains information about the sex that the State registers, which may be useful from the point of view of the functioning of the State and of society, while information about "gender identity ', which does not have an objective, meaningful use for the State, remains out of the national reach or record, since there is no reasonable reason for such registration.
53. At the same time, it should be noted that although, in accordance with Article 7 (1) of the Charter, which guarantees the integrity of a person and his privacy, everyone can identify and perceive his or her person however he or she wishes, this does not mean that the State cannot register information of an objective nature with which a person disagrees or is uncomfortable for any reason. In other words, if someone - as the appellant in this case - is identified internally as a person of the so-called neutral sex, this does not mean that the State cannot register objective information in a native number that the sex of the carrier is male, even if the bearer of the birth number sees this reality as contradictory to his own feelings. For such a conclusion, the Constitutional Court would have to find it in other provisions of constitutional order, as is the case, for example, with a nationality for which Article 3 (2) of the Charter expressly states that "everyone has the right to freely decide on his or her nationality ', prohibiting" any influence on such decisions and any means of pressure to denationalise'. However, neither gender nor gender expression in the form of the right to gender identity are, in constitutional order, subjective in this way.
54. In this context, the Constitutional Court points out, in order to provide a certain perspective, that while in one State the insistence on the subjectivisation of categories having originally certain objective anchoring may be seen as a manifestation of a modern rule of law respecting human rights, in other States and under other cultural conditions and historical experience, it may, on the contrary, raise doubts as to its consistency with international obligations to protect human rights. For example, according to the UN Committee on Economic, Social and Cultural Rights, Finland has infringed Article 25 in connection with Article 27 of the International Covenant on Civil and Political Rights by excluding any objective criteria which the Sami Parliament has set in order to protect its own traditions, and instead focused on whether the individual's self-perception as belonging to the Sami minority is "sufficiently strong '(see the views of the Committee expressed on 1 November 2018 on notification No 2668 / 2015). According to the Committee, the Sami have the right to establish electoral rules that ensure the effective protection of their culture and way of life, which the Finnish Supreme Administrative Court has made impossible by excluding objective criteria.
55. Therefore, if there are objective reasons for which it is appropriate to register a particular information, and this is the case in the case of sex, the right of privacy under Article 7 (1) of the Charter cannot be inferred from the right not to be registered by the State in the event that such information is inconvenient to anyone, or to be registered instead of it, as it would completely deny the meaning of why its registration is taking place at all. The non-touchability of a person and its privacy under Article 7 (1) of the Charter cannot be confused with the right to a reality other than that of a fiction. The nature of the matter makes it impossible to talk about privacy at all. This can also be seen with other information that can be derived from the birth number. Just as a man who is (officially) a man cannot claim that the birth number does not bear this information, just because he is uncomfortable with it, he cannot claim that the birth number does not bear the date of birth (or even the date of birth registered in it), on the grounds that he does not correspond to his own image of his age.
56. In the non-approved proposal for a derogatory finding, the Constitutional Court also argued in relation to Article 7 (1) of the Charter that "the right to respect for private life includes the guarantor of self-determination within the meaning of the fundamental decision of the individual itself ', and that the right to privacy includes" the guarantor of self-determination within the meaning of the principle decision of self-determination, including the decision on the organisation of its own life'. Although the reasoning of these findings concerned primarily Article 29 (1) of the Civil Code, it is also possible to point out, in the context of the contested provision of the Act on the registration of residents for the sake of completeness, the context in which the findings cited by the Constitutional Court were adopted. They clearly show the scope of the right to privacy.
57. The finding of sp. zn. Pl. ÚS 24 / 10 concerned the collection and use of operational and localisation data on telecommunications operations, whereby the Constitutional Court, according to which "the right to respect for private life also includes a guarantee of self-determination within the meaning of the fundamental decision-making of the individual itself," established by the sentence: "In other words, the right to privacy also guarantees the right of the individual to decide at his own discretion whether, or to what extent, how and under what circumstances the facts and information of his personal privacy should be made available to other bodies." It was therefore a matter of making the facts about individual privacy available, not of whether an individual is entitled to be different or perceived as otherwise.
58. In the case sp. zn. Pl. ÚS 7 / 15, the Constitutional Court then addressed the constitutionality of the obstacles to the individual adoption of a child consisting of a registered partnership. At the time, the Constitutional Court took into account that persons living in a registered partnership had an undisputed right to privacy, whereas "this protection and respect by the State... cannot be fully fulfilled if such persons continue to be stigmatised by the law completely excluding any of them from applying for the adoption of a child at all." Thus, even in this case, it was not a right to a kind of fiction - the Constitutional Court did not state that the State should pretend that the person seeking the adoption of a child in a registered partnership did not live. The point was that a registered partnership should not go to the person concerned.
59. Both findings show constitutionally relevant issues which may arise in relation to sex from Article 7 (1) of the Charter. In the aims of the considerations set out in the sp. zn. This question may also be relevant in the context of the birth number, as the Constitutional Court has already pointed out above. In the light of the finding of sp. zn. This is about what the Constitutional Court has also repeatedly mentioned, namely that the different treatment on grounds of sex must be sustained in the light of Articles 1 and 3 (1) of the Charter.
60. It may then be pointed out to the appellant, for the sake of completeness, that this argument of the proposed derogatory finding was not in his favour. Although the proposal for a finding was based on the right to privacy, internal self-determination and personal autonomy of a person, it did so only in relation to people with diagnosed sexual incongruence and the required respect for self-determination, self-identification and personal autonomy was somewhat relativised by the fact that these values should have been respected only to the extent that they could be assigned to one of the two categories (men and women). If a person identifies himself as a third or neutral gender, he should no longer receive comparable protection. In other words, man's inner feelings should have been respected, but only to the extent that one does not deviate too much from society. Such a legal opinion cannot be relied upon by the Constitutional Court. Moreover, respect for privacy conditioned by (several years) expert examination is not a respect, self-determination dependent on psychiatric diagnosis is not a self-determination, and personal autonomy, which must be given by the doctor's consent, is not an autonomy.
61. If the appellant of the judgments referred to by the European Court of Human Rights is concerned, the Constitutional Court notes that it has considerable doubts about the portability of some European Court of Human Rights of the conclusions of the parties to the sex in the context of the Czech legal order. However, in this procedure, the Constitutional Court does not have the space to comment on this issue in more detail, as the case law of the European Court of Human Rights concerned both legally and factually different cases. The Constitutional Court only dealt with this finding in the form of a birth figure, namely a proposal which would be granted only if the sex of its carrier was not identifiable from the birth number. The relationship between the birth number and the gender change (from male to female) has so far been devoted only to the negative judgment in the Hämäläinen case against Finland of 16 July 2014, complaint No 37359 / 09. The European Court of Human Rights has not yet stated that it is not identifiable from the birth numbers (or comparable identifiers) of sex. Similarly, the European Court of Human Rights has not yet stated that individuals, regardless of their sex, would have to be allowed to express their birth number as having a "third" or "neutral sex" with which the applicant identifies himself.
Conclusion
62. For those reasons, the Constitutional Court rejected the application under Paragraph 70 (2) of the Constitutional Court Act as unfounded.
63. The Constitutional Court has thus concluded that it is in accordance with the constitutional order, if it is possible to deduce from the birth number the sex of its bearer. This conclusion does not limit the legislator's choice of the structure of the birth number differently. Similarly, it does not in itself restrict the legislator in relation to the legislation on the identification or change of sex, which is identifiable from the birth number. The Constitutional Court has since the beginning of its existence ensured that it will stick to its role of safeguarding constitutionality (Article 83 of the Constitution). He has therefore repeatedly tried in the past to emphasise that the solution to fundamental questions concerning man as a biological species, his life and his relationships belongs to the Parliament of the Czech Republic [cf. Findings sp. zn. Pl. ÚS 10 / 15 of 19.11.2015 (N 197 / 79 SbNU 229; 44 / 2016 Coll.) and sp. zn. Pl. ÚS 6 / 20 of 15.12.2020 (47 / 2021 Coll.)]. Judicialisation of these issues may lead to the politicisation of the Constitutional Court and thus to weakening its position as an impartial and independent judicial body protecting constitutional order.
President of the Constitutional Court:
JUDr. Rychetský v. r.
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, Judge Ludvik David, Jaromír Jirsa, Pavel Šámal, Kateřina Šimáková, Vojtěch Šimělek, David Uhíř and Jiří Zemánek took a decision.
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Regulation Information
| Citation | The Constitutional Court found No. 112 / 2022 Coll., on the application for annulment of parts of § 29 of Act No. 89 / 2012 Coll., Civil Code, § 21 of Act No. 373 / 2011 Coll., on specific health services, and § 13 of Act No. 133 / 2000 Coll., on the registration of residents and birth numbers and on the amendment of certain laws (Act on the registration of residents), as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 05.05.2022 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Legal Areas:
Constitutional (state) law
Fundamental human rights
The regulation text is for informational purposes only.
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