The Constitutional Court found No 144 / 2024 Coll.
Findings of the Constitutional Court sp. zn. Pl. ÚS 52 / 23 on the application for annulment of § 29 paragraph 1 of Act No. 89 / 2012 Coll., Civil Code, § 21 and 23 of Act No. 373 / 2011 Coll., on Specific Health Services, as amended by Act No. 202 / 2017 Coll., and the declaration of inconstitutionality of § 62 paragraph 1 and § 72 paragraph 3 and 5 of Act No. 301 / 2000 Coll., on Matrices, Name and Surname and on the amendment of certain related laws, as effective until 31.12.2023
Valid
The Constitutional Tribunal found
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144
FIND
The Constitutional Court
of 24 April 2024
sp. zn. Pl. ÚS 52 / 23 concerning the application for annulment of § 29 paragraph 1 of Act No. 89 / 2012 Coll., Civil Code, § 21 and 23 of Act No. 373 / 2011 Coll., on Specific Health Services, as amended by Act No. 202 / 2017 Coll., and the declaration of inconstitutionality § 62 paragraph 1 and § 72 paragraph 3 and 5 of Act No. 301 / 2000 Coll., on Matrices, Name and Surname and on the amendment of certain related laws, as effective by 31.12.2023
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 52 / 23 on 24 April 2024 in plenary composed of the President of the Court of Josef Baxy and judges and judges of Lucie Dolanská Bányai, Josef Fiala, Milan Hulmák, Jaromír Jirsy (Judge of the Rapporteur), Veronica Christian, Zdeněk Kühn, Tomáš Ličník, Catherine Ronovské, Jan Svatona, Pavel Šámal, Vojtěch Šimíček, David Uhlíř, Jan Wintra and Daniela Zeman on the proposal of N. G., formerly A. V., by the birth name L. V., represented by Mgr. Petr Kalla, the lawyer, Slavíčkova 372 / 2, Praha 6, on the annulment of Article 29 (1) of Law No. 89 / 2012 Coll.
as follows:
I. The amendment of the proposal consisting of its extension to the application for annulment of the provisions of § 72a (2) and § 3 of the sentence of the second Act No. 301 / 2000 Coll., on matrices, names and surnames and on the amendment of certain related laws, as effective from 1.1.2024, is not permitted.
II. Paragraph 29 (1) of the First Law No 89 / 2012 Coll., Civil Code, is hereby repealed with effect from 30 June 2025.
III. Paragraph 21 (1) of Act No 373 / 2011 Coll., on Specific Health Services, as amended, shall be deleted with effect from 30 June 2025.
IV. The remainder is rejected.
Reasons
Definition of the case
1. N. G. (hereinafter also "the applicant") is a person seeking legal sex change and wishing to reflect on how he feels without having to undergo the required surgery. The state does not yet respect him as a man of another sex.
2. In the proceedings for a constitutional complaint brought under point I. ÚS 2776 / 23 N. G., he proposed that the Constitutional Court should repeal the legal provisions which, by carrying out a surgical procedure to prevent reproductive function and the conversion of sex organs, make it conditional on other conditions governing the change of name following the sex of a person. In particular, the appellant contends that the legal provisions in question are contrary to its human dignity, the right to equality, health protection, respect for private life and to parenthood.
3. On 13 December 2023, the First Chamber of the Constitutional Court suspended the proceedings for a constitutional complaint and forwarded the application for annulment of the legislative provisions in question to the plenary.
4. In the present case, two issues are key:
1) First, whether the plenary of the Constitutional Court is to examine, in substance, the proposal by N. G. to abolish the legal provisions, even though the Constitutional Court has already ruled on the application of another person to abolish partially identical provisions by finding a sp. zn.
2) Secondly, whether it is in accordance with the constitutional order to force people to undergo surgery in order to prevent reproductive function and the transformation of sex organs from being recognised by the State.
Facts and procedural developments
5. The applicant was born with the biological characteristics of a woman and was officially registered after birth as a woman with a female name and birth number format. However, the promoter identifies himself as a trans human - male (the description of trans humans is also used in the text), he is undergoing a gender change process, but does not intend to undergo the required surgery which involves preventing reproductive function and transforming sex organs.
6. In 2019, the appellant requested: (1) registration of a change in the neutral name ("A. V.") in the name of the male ("G. V."), (2) registration of a change in the female birth number format to the male format, (3) registration of a change in the official sex designation from female ("F") to male ("M").
7. The competent administrative authorities have stopped the application procedures of the applicants since they did not submit a confirmation of cessation of treatment for sex change and did not remove the material defects of the applications [Paragraph 66 (1) (c) of the Administrative Regulation]. By decision of 4 September 2019, the Municipality of the City of Prague ("the Administrative Board of Appeal ') rejected the appellant's appeal.
8. The appellant brought an action against the decisions of the appellate authority before the Municipal Court in Prague (hereinafter referred to as the "Municipal Court '), which first suspended the proceedings until the decision of the Constitutional Court in the case under point II.II of the ÚS 2460 / 19. In the present proceedings on the constitutional complaint by the plenary of the Constitutional Court, the Constitutional Court issued a decision on the finding of the Pol. The municipal court - after the decision of the Constitutional Court - dismissed the action of the current appellant by judgment No 10 A 180 / 2019-43 of 18.8.2022.
9. The Supreme Administrative Court (hereinafter referred to as "NSS") dismissed the appellant's appeal as unfounded by judgment No 207 / 2022-43 of 17.8.2023; referred to the relevant legal provisions [§ 17a and § 72 (5) (b) of Act No. 301 / 2000 Coll., on Matrices, Name and Surname and on the amendment of certain related laws, as amended, and § 17 (2) (d) of the Act on the Registration of Residents], which imply that the change of name, birth number format and gender designation is conditional on termination of treatment (procedures), which consists in surgical intervention while preventing reproductive function and transforming the sex organs of the person concerned. The change in sex in this sense is defined in § 29 (1) of the Civil Code in conjunction with § 21 (1) of the Social Code. According to the NSS, administrative decisions were legal in substance because the complainant failed to provide the medical confirmation of cessation of treatment required for sex change.
10. The NSS concluded that without the implementation of the required surgery or the abolition of Paragraph 29 (1) of the Civil Code, in conjunction with Paragraph 21 (1) of the Law on Specific Health Services, the applicant cannot succeed with his applications. If the appellant objected to the illegality of the legal conditions of the surgical procedure, it was appropriate to consider the application for annulment of the relevant legal provisions of the Constitutional Court; The NSS concluded that it had no reason to proceed under Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution).
11. Furthermore, the NSS stated that, pursuant to Article 89 (1) and (2) of the Constitution, the conclusions of the finding of Sp. zn. Although the Constitutional Court did not consider Article 29 (1) of the Civil Code in conjunction with Article 21 (1) of the Social Code to be relevant in the present case, it nevertheless commented on their constitutionality. The finding of sp. zn. Pl. ÚS 2 / 20 is negative - his only statement is that the proposal is rejected. The Constitutional Court did not reject the proposal at the time by order because it considered that the provisions in question had not been applied in the proceedings before the general courts.
12. As regards the appellant's objections, which relativised the procedure of the Constitutional Court, as well as the commitment and legitimacy of its finding, sp. zn. Pl. ÚS 2 / 20, by reference to the voting conditions and different opinions, the NSS stated that the Constitution and Law No. 182 / 1993 Coll., on the Constitutional Court, as amended, did not distinguish between the findings adopted by the relative or qualified majority and the findings relied upon by the decision of the "Qualified Minorities' - that is to say, the plenary findings issued by the Constitutional Court in a situation where the majority of the nine Judges for the annulment of the Constitutional Court under Article 13 of the Law, as amended by Law No. 48 / 2002 Coll. Nor can a staff renewal of the Constitutional Court be the reason for the re-constitutional review. The NSS is also bound by its earlier judgments (No 2 As 199 / 2018-37 of 30.5.2019 and No 9 As 61 / 2018- 64 of 25.7.2019).
13. In the Czech Republic, according to the NSS, the subjective concept of legal (social) sex, based not on primary sexual characteristics, has not yet been established, but on how a particular individual sees himself, reflecting the contested legal regulation which makes the change of legal sex subject to the requirement that prior to its implementation there be some consistency between the primary sexual characteristics of the individual and the desired sex. While there is a trend of moving from objective criteria to subjective, the NSS believes that the change should not be promoted or accelerated by the courts, which should be restrained on statutory issues - which include gender change - and should leave the solution to legislators or states at international level. The change must be made on the basis of a social and professional debate.
14. According to the NSS, objective legal-biological concepts of sex can be considered as part of public order. This is mainly about protecting the basic natural attributes of family and parenting: the child has a father-man and mother-woman who gave birth; Czech family law provides that the parents of the child are male and female (§ 775-779 civil code). If a person born as a woman could legally become a man without preventing a reproductive function, she could give birth to a child as a man and could not become his mother within the meaning of Section 775 of the Civil Code, which, according to the NSS, is contrary not only to the described basic principle of Czech family law, but also to other legal institutions for the protection and promotion of motherhood, e.g. in labour and social law. Protecting the "traditional" family is a legitimate objective for limiting other fundamental rights, even if it is a period of time and culturally conditional. According to the NSS, "the basic natural attribute of parenthood, especially motherhood, is the corresponding right of an unborn child to give birth to a woman who will become his mother. What family (whether in the original" traditional 'or otherwise) will then grow up and what legal relations between members of such a family, between the child and his, social' parents, is already a completely different story. "
15. The NSS also deals in the contested decision with the case-law of the European Court of Human Rights (hereinafter referred to as the "ECHR") and stresses that the issue of cross-compliance with gender change has not yet been explicitly assessed by the ESLP's surgical sterilisation procedure from the perspective of protecting the fundamental natural principles of parenthood (motherhood).
16. The appellant opposes the judgments of the City Court and the NSS in the proceedings brought under point I. ÚS 2776 / 23. The First Chamber of the Constitutional Court concludes that the application by the appellant for annulment under the heading of the designated legal provisions will refer the full court to the decision referred to in Article 87 (1) (a) of the Constitution under Paragraph 78 (1) of the Law on the Constitutional Court (see resolution sp. zn. I. ÚS 2776 / 23 of 13.12.2023).
Arguments of the appellant
17. In simple terms, the appellant argues that the condition of gender change by performing surgery, which consists in preventing reproductive function and transforming sex organs, is unconstitutional. The legal conditions for gender change are vague, illegitimate, unnecessary and disproportionate. According to the appellant, it is an unconstitutional law to force trans people to sterilize and deny their right to parenthood, unlike other people.
18. The conclusions of the finding of sp. zn. Pl. ÚS 2 / 20 and (downstream) of the finding of sp. zn. II. ÚS 2460 / 19 are not relevant to the case as the applicant is not a non-moral person who does not wish to change the sex. It follows from those findings that the Constitutional Court did not examine the constitutionality of the contested legal provisions because it did not consider them relevant. At the same time, the contested conclusions were adopted by a minority of constitutional judges and therefore do not have a "precedent 'character. The Constitutional Court, according to the appellant, has ruled in breach of the ECHR case law and is currently pending proceedings against the Czech Republic before the ECHR.
Observations of the parties
19. The Judge-Rapporteur, pursuant to Paragraph 69 (1) of the Law on the Constitutional Court, requested the parties' comments on the annulment of the legal provisions contested.
20. The Chamber of Deputies described the legislative process: The draft Civil Code was submitted by the Government to the Chamber of Deputies in May 2011 (6. Election, 2010- 2013, House Press No. 362 / 0). The proposal was discussed at first reading and ordered to discuss the constitutional legal committee, which adopted a resolution with amendments to it (House Press No. 362 / 2). The second reading took place in October 2011. At the third reading on 9 / 11 / 2011, 92 Members voted in favour of the Act of 154, against 35. The Chamber of Deputies describes the procedure for the adoption of the Law on Specific Health Services and the Law on Matrices, Name and Surname and the amendment of certain related laws. Paragraph 72 (5) of the Matrix Act, name and surname and amendment of certain related laws, in the contested text, was repealed by Act No 414 / 2023 Coll. According to the Chamber of Deputies, all the contested laws have been passed by the necessary majority of Members, signed by the relevant constitutional authorities and duly declared.
21. In its observations, the Senate summarises the appellant's argument and describes the legislative process: The draft Civil Code was referred to the Senate in January 2012 (Senate, 8th term of office, 2010- 2012, Senate Press No. 259), which discussed it on 25 January 2012 and did not adopt any resolution on the draft law. The Senate also describes the procedure for the adoption of the Law on Specific Health Services and the Law on Matrices, Name and Surname and on the amendment of certain related laws. The obligation to undergo surgery in the event of gender change was not at all the subject of discussion by the Upper House of Parliament in any of the contested regulations. Paragraph 72 (5) of the Matrix Act, name and surname and amendment of certain related laws, in the contested text, was repealed by Law No 414 / 2023 Coll. with effect from 1.1.2024 (the material was changed and moved to the new § 72a).
22. The Judge-Rapporteur has sent a motion under Paragraph 69 (2) and (3) of the Constitutional Court Act to the Government and to the Ombudsman who did not intervene.
23. In reply to the observations, the appellant stated that it assumed that the Constitutional Court under Paragraph 67 (1) of the Law on the Constitutional Court would partially terminate the proceedings in relation to the provisions of Section 72 (5) of the Matrix, the name and surname and the amendment of certain related laws, in the version effective until 1 January 2024. According to the appellant, however, the Constitutional Court should examine and, where appropriate, repeal Section 72a (2) and paragraph 3 (2) of the Second Act on Matrices, Names and Surnames, and on the amendment of certain related laws, as effective from 1 January 2024, since they are related in substance to the repealed provision without which they lose meaning. The difference between the legislation effective until 31 December 2023 and from 1 January 2024 is that until 31 December 2023 the change of name and surname was the issue of an administrative decision, whereas from 1 January 2024 it is the factual entry of the change of name.
24. The current government did not comment on the proposal. For the purpose of clarifying the issue of gender change in the Czech legal order, reference may also be made to the observations of the former Government as well as to the observations of the Ombudsman, the Expert Commission of the Ministry of Health on the subject of the sex change of transsexual patients and other technical observations made in the case sp. zn.
Abandonment of oral proceedings
25. The Constitutional Court did not expect further clarification of the case from the oral hearing, so it waived the first sentence of Paragraph 44 of the Constitutional Court Act.
Text of the contested legal provisions
26. Paragraph 29 (1) of the 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. ';
27. Paragraphs 21 and 23 of the Act on Specific Health Services, as amended by 1.11.2017:
(1) By changing the sex of transsexual patients, for the purposes of this law, it means performing a health performance whose purpose is to perform a sex change by surgery while preventing reproductive function. A transsexual patient is a person who has a permanent mismatch between a mental and physical gender (hereinafter referred to as a sexual identification disorder).
(2) Surgical procedures towards gender change may be performed on the patient,
(a) which has been clearly identified as having a sexual identification disorder and demonstrated the ability to live permanently as a person of the opposite sex; and
(b) who has not entered into a marriage or who has not entered into a registered partnership or similar union of persons of the same sex abroad, proving, where appropriate, that his marriage or registered partnership or similar union has ceased to exist.
(3) Surgical procedures towards gender change should be performed on the basis of a patient who has completed the age of 18 years.
(a) his written request; and
(b) positive opinions of the Panel of Experts.
(4) Surgical procedures towards gender change should be performed on the basis of a patient with limited fitness,
(a) the written request of the patient's guardian; This is without prejudice to the provisions of Section 35 of the Health Services Act,
(b) the favourable opinion of the Panel of Experts; and
(c) the consent of the court.
[...]
(1) A change in sex may be initiated if the patient or the patient's guardian has given written consent to this immediately prior to its initiation.
(2) The provider shall provide the patient and the patient's guardian with a confirmation of the sex change. '
28. Paragraph 62 (1) of the Matrix Act, name and surname and amendment of certain related laws, as amended from 1.1.2016 to 31.12.2023, states:
(1) Any existing name may be entered in the matrix book in the correct spelling form. You can't write names bagged, small and homely. A male natural person cannot be registered as a female and vice versa. Furthermore, the Matrix Office shall not enter a name if it is known that the name is used by a living sibling, if the siblings have a common parent. If there is doubt as to the existence of a name or its proper form, the citizen shall be required to submit a document issued by the expert (6). '
29. Paragraph 72 (3) and (5) of the Matrix Act, name and surname and amendment of certain related acts, as amended from 15.8.2017 to 31.12.2023, provides:
[...]
(3) A change of name shall not be allowed if a natural person of the male sex requests a change in the name of a woman or vice versa, if he requests a change of name in the name of a non-existing, compartmented, small, domestic or in the name of a living sibling of a common parent. Where doubts arise as to the existence of a name or its proper form, the applicant shall submit a document issued by the expert. 6
[...]
(5) At the request of the natural person and the confirmation of the health service provider, the Authority will authorise the change of name and surname, as appropriate, and
(a) the neutral name and surname when treatment for gender change has been initiated; or
(b) other names and surnames if the sex change treatment has been completed.
If a natural person does not request a change of name and surname after the change of sex, the Registry shall indicate its surname in the birth book in accordance with the rules of the Czech speaker in the form corresponding to the new sex; the name shall not be entered in the birth book and shall make the notification to the court. ';
Note 24: Paragraph 29 (1) of the Civil Code.
Proceedings before the Constitutional Court
30. The Constitutional Court first assessed the fulfilment of procedural requirements for the application for annulment.
31. According to the Constitutional Court, the procedural assumptions in the present case were fulfilled for the following reasons: first, the application for annulment of § 29 (1) of the Civil Code and § 21 (1) of the Law on Specific Health Services is admissible, although the Constitutional Court had previously ruled on the proposal of someone else to repeal the same provisions by finding sp. zn. Secondly, the appellant is actively authorised to submit a proposal because there is a close link between all the legal provisions contested and the judicial decisions (VII. 2). Thirdly, the procedure for the application for annulment of the amended (repealed) provisions of the Matrix Act, the name and surname and the amendment of certain related laws cannot be stopped, it must be considered as a proposal to declare the inconstitutionality of those provisions (VII. 3).
32. The Constitutional Court has not accepted an amendment of the proposal consisting in its extension to the application for annulment of the provisions of § 72a (2) and § 3 of the sentence of the second Act No. 301 / 2011 Coll., on matrices, names and surnames and on the amendment of certain related laws, as effective from 1.1.2024, since that provision in the case of the appellant has not been applied (VII. 4).
Findings sp. zn.
33. If, pursuant to Article 89 (2) of the Constitution, the enforceable findings of the Constitutional Court are binding on all the institutions and persons, they must also be binding on the Constitutional Court [so far the finding of page III of the ÚS 425 / 97 of 2.4.1998 (N 42 / 10 SbNU 285)].
34. The internal obligations of the Constitutional Court's case-law are manifested in particular in Paragraph 35 (1) of the Law on the Constitutional Court, according to which the application to initiate proceedings is inadmissible if it concerns a case already decided by the Constitutional Court. The obstacle to a case of judgment (res iudicata) prevents the Constitutional Court from taking a decision on the same matter over and over again.
35. The principle of no bis in idem that the legal obstacle to a judgment arises guarantees legal certainty and trust in law. In proceedings before the Constitutional Court, questions already resolved in fact and legally identical cases cannot be re-opened. The Constitutional Court has the power to give authoritative interpretation of the constitutional order definitively, it is not a place for continuous controversy with the reasons for the decision already stated [cf., generally in a different context e.g. the finding of sp. zn. III. ÚS 1275 / 10 of 22.12.2010 (N 253 / 59 SbNU 581); Findings sp. zn. Pl. ÚS 29 / 09 of 3.11.2009 (N 233 / 55 SbNU 197; 387 / 2009 Coll.), paragraph 100).
36. The Constitutional Court has in the past rejected the proposal of another appellant to abolish § 29 (1) of the Civil Code and § 21 (1) of the Law on Specific Health Services by finding sp. zn. Pl. ÚS 2 / 20. Before the Constitutional Court explains why this finding does not constitute an obstacle to the judgment, it summarises briefly:
The then draftsman was born with the biological characteristics of a man, but she felt not to be a man, nor a woman, but a person of a neutral sex; the administrative authorities and courts called for a change in the birth number. Its argument was that it had the right to change sex even in the absence of compliance with the conditions laid down in Paragraph 29 (1) of the Civil Code; its birth number should have been registered in a "neutral" or "female" shape.
The Constitutional Court concluded that the application was not justified. Since the appellant did not feel like being a man or a woman, it was, according to the Constitutional Court, superfluous to deal with the conditions under which gender can be changed in the Czech Republic from male to female or vice versa. The procedure from which the proposal came concerned the birth number and therefore the Constitutional Court focused only on its form within the meaning of Article 13 (3) of the Act on the registration of residents.
According to the Constitutional Court, it is not unconstitutional if the State records information about the sex of an individual in its birth number, or if the sex within the birth number is taken in binary. In the Czech Republic, people are divided into women and men. This understanding of the binary existence of human species does not come from the will of the state, as public power merely accepted them as a social reality. The existence of men and women takes note of the Czech legal order, including the rules of constitutional order and international treaties. According to Article 29 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter), for example, women have the right to increased health protection at work and special working conditions. Pursuant to Article 12 of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '), men and women have the right to marry and establish a family. The Civil Code similarly defines marriage as" a permanent union of men and women. "The binary concept of sex is also dealt with by the criminal order, according to which a person of the same sex always performs a personal search. The difference between men and women is also made in the Czech Republic in the case of private law activities: there are sport competitions organised exclusively for women, men and women have separate dressing rooms or toilets, women's coupe trains, etc.
Recognition of the existence of women and men is not, from a constitutional point of view, problematic. If constitutional acceptance and even constitutional order foresees that people are divided into men and women and that division has legal or practical implications, then it is logical that the state of information on sex, that is to say, a man or a woman, is recording in a form.
According to the Constitutional Court, those conclusions do not alter the fact that the sex that can be derived from the birth number does not always correspond to the one with which a person is identified internally. The purpose of the provision governing the birth number of women is not to present with which sex the carrier of the birth number is identified; information about the sex of the person who can be derived from the birth number does not indicate any internal feelings of the person. By capturing information about the sex of a person, the state does not determine the way in which a person looks at or looks at himself.
The birth number contains information about the sex registered by the State as it may be useful from the point of view of the functioning of the State and of the company, while information about "gender identity ', which does not have an objective, meaningful use for the State, remains outside the register, since there is no reasonable reason for it.
If there are objective reasons for which it is appropriate to register a particular information, the right not to register it or not to register information that is not appropriate to the reality may be derived from the right to privacy.
If the appellant of the ESLP judgment referred to is concerned, the Constitutional Court had doubts about the portability of some of the ESLP conclusions of the sex parties in the context of the Czech legal order; However, it did not have the space to comment on this issue in more detail, as the ECHR case-law concerned both legally and factually different cases.
The Constitutional Court concluded, in its finding, that it was in accordance with the constitutional order, if it was possible from the birth figure to deduce the sex of its bearer. This conclusion is not limited by the legislator in relation to the legislation on the identification or change of sex, which is identifiable from the birth number. Solving questions relating to man as a biological species, his life and relationships belongs to the Parliament of the Czech Republic; their judicialisation could lead to the politicisation of the Constitutional Court.
37. The Constitutional Court has come to the conclusion that, for several reasons, the summary of the finding of the sp. zn.
38. In order to assess the existence of an obstacle to a case judged, it is necessary to address the question on which the Constitutional Court, in the decision of the Court of First Instance, decided meritantly, namely to what specific extent the obstacle to the case decided could arise.
39. It is essential that, in the procedure for checking standards (abstract or specific), it is subject to the procedure for assessing the constitutionality of the contested legislation, irrespective of the person or type of applicant. The identity (unity) of the case within the meaning of the obstacle to the case judged must be assessed by the identity of the contested provision, as well as the alleged and subsequently examined reasons for the non-constitutionality (cf. Adequate finding, sp. zl. ÚS 29 / 09, paragraph 97, which otherwise concerns the review of international treaties); the extent to which the constitutional review actually carried out is decisive.
40. In other words, the obstacle to the case judged must be defined not only by the conformity of the contested legal provisions, but also by the reference criteria of constitutionality, which the Constitutional Court had previously dealt with in the context of the review of constitutionality [see sp. zn. In: BOBEK, M., KÜHN, Z. and collective. Judgments and legal arguments. 2. Vyd. Praha: Auditorium, 2013, p. 355].
41. If there is an obstacle to a matter judged automatically in all cases where the Constitutional Court rejects the motion for annulment of the law by a finding, this would mean the absolute impossibility of repeatedly assessing the constitutionality of the same law, even for reasons other than the previous case. Such an interpretation of Article 35 (1) of the Constitutional Court Act is untenable: the notion that the Constitutional Court is able, within the framework of one review, to intervene apriciously, regardless of the arguments contained in the proposal, all the constitutionally relevant contexts of the present case, is unrealistic (concurrently HOLLÄNDER, P. § 35 in: FILIP, J., HOLLÄNDER, P., ŠIMÍČEK, V. Law on the Constitutional Court. Issue 2. Praha: C. H. Beck, 2007, p. 166).
42. The Constitutional Court always assesses the constitutionality of legislation in a specific context. Rigid clinging to the "one time, last time" principle, no matter what questions the Constitutional Court has dealt with materially, would be formalistic. As a result, the mere form of rejection could prevent the Constitutional Court from fulfilling the horn of the constitutional authority in the future, which would deny the purpose of its existence. Therefore, the development of social and legal circumstances as a result of the passage of time can also be a change in the context in which the Constitutional Court decides.
43. The perspective set out in the preceding paragraphs must be seen in the present case on the finding of sp. zn. In this decision, the Constitutional Court dealt primarily with the constitutionality of the legal form of the birth number (i.e. Section 13 (3) of the Act on the registration of residents), the constitutionality of the conditions under which sex can be changed was not assessed in substance; Therefore, neither Article 29 (1) of the Civil Code nor Article 21 (1) of the Law on Specific Health Services is imposed. Although the statement of the finding, sp. zn. Pl. ÚS 2 / 20 was rejected in relation to all the legal provisions at the time, it follows from its reasoning that the plenary of the Constitution of Paragraph 29 (1) of the Civil Code, in conjunction with § 21 (1) of the Social Code, did not deal in substance because it did not consider the provision to be relevant to the present case. The Constitutional Court specifically stated in point 31 of the finding, sp. zn. Pl. ÚS 2 / 20, that "[n] it makes sense to deal with the specific conditions for changing sex from male to female on the basis of a case of the applicant who was not born, is not considered a woman and has not yet decided to change sex into women at all '. The conclusion cited was to be reflected (ideally) in the statement by rejecting the proposal for the right of the author at the time, but that is not important for resolving the question of rei iudicatae. It is not possible to assess the existence of an obstacle to a case judged solely on the basis of the wording of the operative part of the decision - that would be inappropriately formalistic.
44. In the present case, it is directly apparent that the scope of the constitutional review of the so-called specific standard control procedure depends on the context of the case from which the proposal to repeal the law came. It is a "practical life itself, which formates constitutional issues related to the application of a certain legal standard in specific factual situations to which the Constitutional Court should answer" [see Elisa Wagner's different opinion in the sp. zn.
45. If plenary in the find sp. zn. Pl. ÚS 2 / 20 has chosen a minimalist approach because the then author did not feel like being a man or a woman, this does not automatically mean that it will be transferable to all other cases. The current case is different: the plaintiff is not a non-moral person who does not want to change sex, but a trans-human who actively seeks to change from female to male (officially registered) sex. The negative finding of sp. zn.
46. The finding of sp. zn. Consequently, the internal binding nature of the conclusions reached in the decision on the decision of the CFI 2 / 20 is significantly weakened in the assessment of the existence of an obstacle to a case judged.
47. It can be added that for the same reasons the general normative function of the previous finding is substantially weakened. As a general rule, the stability of the Constitutional Court's case-law is a constitutional value per se to guarantee the relative stability of the legal environment. The Constitutional Court's Board cannot, therefore, change the legal opinion already expressed solely because of a change in the voting conditions or the judicial corps [Findings sp. zl. ÚS 27 / 22 of 20.12.2023 (19 / 2024 Coll.), paragraph 27]. However, the legal conclusions reached only by the so-called relevant minority of the plenary cannot give rise to the same legitimate expectations as those adopted by the Plenary Plenary by a qualified majority [for a similar opinion, the finding of sp. zn.
Active ID of the applicant
48. Although the finding of sp. zn.
49. According to Article 74 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the complainant can link the constitutional complaint to the proposal to abolish the individual provisions of the law, "the application of which resulted in a fact which is the subject of a constitutional complaint '. There must be a close link between the constitutional complaint of the contested decision and the contested legal provision in the sense that, without the contested legal provision, the decision would not have been the result of [cf., for example, the finding of sp. zn. Pl. ÚS 19 / 14 of 27.1.2015 (N 16 / 76 SbNU 231; 97 / 2015 Coll.), paragraph 21; the finding of sp. zn. Pl. ÚS 5 / 16 of 11.10.2016 (N 186 / 83 SbNU 43; 393 / 2016 Coll.), paragraph 40; the finding of sp. zn. Pl. ÚS 15 / 17 of 27.2.2018 (N 33 / 88 SbNU 457; 69 / 2018 Coll.), paragraph 14]. According to the Constitutional Court, in the present case, there is a close link between all legal provisions and constitutional complaints challenged by decisions of administrative courts.
50. The contested provisions of the Matrix Act, the name and surname and the amendment of certain related laws govern the conditions under which the Matrix Office accepts a person's request to change his name following his changed sex. In examining the applicant's application to register a change in the neutral name ("A. V. ') in the name of the male (" G. V.'), the administrative authorities and the courts first based on the rule that male individuals cannot be registered (§ 62 (1) in conjunction with § 72 (3) of the Matrix Act, name and surname and amendment of certain related laws, as amended by 31.12.2023). In this respect, if there is no such rule, the administrative authorities could comply with the applicant's request. Subsequently, the administrative authorities and courts have applied the special provisions of Section 72 (5) of the Matrix Act, the name and surname and the amendment of certain related laws, in the version effective until 31.12.2023, aimed at persons undergoing the sex change process. According to that provision, in such cases, the name and surname may be changed only on the basis of confirmation from the health service provider of the completion of the sex change treatment. Even in that sense, if the law did not require confirmation of completion of the treatment for sex change, the applicant's request to change the name and surname could be granted.
51. It follows from the above that there is also a close link in the present case to Article 29 (1) of the Civil Code, which regulates the legal status of an individual when it comes to sex change - it defines what it means and when it occurs. The assessment of the status of the applicant in relation to sex (i.e. whether he is a man or a woman) determines whether it is possible to change his current name in the name of a man. In other words, the authorisation of a change of name depends on the assessment of whether a "status' change of sex occurred with the applicant within the meaning of § 29 (1) of the First Civil Code. Since the applicant did not undergo surgery to prevent reproductive function and sex organ transformation, the provision in question precludes his request for a change of name being granted: under the existing legislation, the applicant has female status and therefore the change of his name in the male name could not be authorised (§ 62 (1) in conjunction with § 72 (3) of the Matrix Act, name and surname and amendment of certain related laws, as amended by 31.12.2023).
52. At the same time, there is a close link to the provisions of Sections 21 and 23 of the Act on Specific Health Services, as amended by Act No. 202 / 2017 Coll., the regulation of which defines the change of sex only "for the purposes of this Act." Health performance, which falls within the range of ZZS, follows the purpose of "performing sex change by surgery." Act No 373 / 2011 Coll., on specific health services, as amended, specifies the conditions under which the health service provider will perform "operational" sex change: the patient must apply for surgery in writing and give consent, have a positive opinion of the Panel and demonstrate the ability to live permanently as a person of the opposite sex, etc. (§ 21). If the administrative authorities and courts had not applied the provisions of the TSG, they could not have ascertained whether the claimant had undergone a sex change by surgical procedure and it would not have been clear if the treatment required under Paragraph 72 (5) of the Matrix, Name and Surname Act and the amendment of certain related laws, as effective by 31 December 2023, had been completed.
53. According to the Constitutional Court, the requirement of active legitimacy to file an application for the abolition of statutory conditions for sex change must also be considered to be fulfilled because there is no "more appropriate 'way for the appellant to challenge the regulation which makes it conditional on sex change by surgery at the Constitutional Court. Neither in the finding of sp. zn. Furthermore, the Constitutional Court will not assess the conditions of the applicant's active legitimacy formally in order to prevent him and the people in a similar position from obtaining an assessment of the legal conditions of gender change.
54. It can be summarised that the present proposal is not submitted by someone manifestly unauthorized within the meaning of Article 43 (1) (c) of the Constitutional Court Act, as amended by Act No 77 / 1998 Coll., because there is a close link between the contested legal provisions and the contested judicial decisions.
Admittance of the motion to declare unconstitutional
55. It is also necessary to assess whether the procedure for the application for annulment of Sections 62 (1) and 72 (3) and (5) of the Matrices Act, the name and surname and amendment of certain related laws, as amended by 31 December 2023, should be terminated pursuant to Section 67 (1) of the Constitutional Court Act, as the provisions cited have been amended with effect from 1 January 2024 by Act No 414 / 2023 Coll.
56. The Constitutional Court has already dealt with the issue of review of legislation which has expired or has been amended. First, the review was granted on the basis of a proposal by the court pursuant to Article 95 (2) of the Constitution [finding sp. zn. Pl. ÚS 33 / 2000 of 10.1.2001 (N 5 / 21 SbNU 29; 78 / 2001 Coll.)]. The constitutionality of the annulled or amended Act will be examined by the Constitutional Court on the condition that the addressee of the alleged reason for non-constitutionality is the public authority, not the private law body [paragraph 17 of the finding sp. zn. Pl. ÚS 23 / 11 of 24.4.2012 (N 86 / 65 SbNU 161; 234 / 2012 Coll.)]. The Constitutional Court has similarly accepted, in compliance with the same condition, a review of the annulled or amended Act on the basis of the complainant's application under Paragraph 64 (1) (e), in conjunction with Section 74 of the Law on the Constitutional Court [Find sp. zn.
57. In the present case, which concerns the conditions for changing the name and surname following the sex of the individual, public authority is the addressee of the alleged reason for non-constitutionality. The procedure for the present proposal was therefore not terminated under Paragraph 67 (1) of the Law on the Constitutional Court - it has to be considered in this section as a proposal to declare the inconstitutionality of a legal provision.
Absence of amendment
58. However, the Constitutional Court - with the appropriate application of Section 95 of the Civil Code - did not accept an amendment to the proposal made by the appellant in a reply requiring the Constitutional Court to examine also the constitutionality of Sections 72a (2) and (3) of the Second Act on Matrices, Names and Surnames and on the amendment of certain related laws, as amended by 1.1.2024. This change took effect only during the proceedings before the Constitutional Court, so that it was not applied in the applicant's case. Since the Constitutional Court accepted the proposal to declare the non-constitutionality of the provisions contained in the provisions contained in paragraphs 1 and 3 of Article 62 and Article 72 (5) of the Matrix Act, the name and surname and the amendment of certain related laws, as effective by 31.12.2023, there is no reason to accept the amendment (extension) of the petition (petition) as requested by the appellant.
Progress of the legislative process and assessment of its constitutional conformity
59. Since the procedural conditions for the proceedings on the original application of the appellant are generally met, pursuant to Paragraph 68 (2) of the Law on the Constitutional Court, as amended by Act No 48 / 2002 Coll., further consideration should be given to whether the contested laws have been adopted and issued within the limits of the constitutional jurisdiction and in the prescribed manner - the Constitutional Court answered this question positively. The appellant did not raise any objections in this respect.
Substantial review of the Constitutional Court
60. The Constitutional Court further concluded that the application for annulment of Paragraph 29 (1) of the First Civil Code is justified. The legal requirements for the surgical transformation of sex organs and the prohibition of reproductive function only for the purposes of the "status" sex change are contrary to the fundamental right of persons seeking such change to protect physical integrity and personal autonomy and to their human dignity under Article 7 (1) of the Charter in conjunction with Article 8 of the Convention and Article 1 of the Charter (IX). For the same reasons, the provision of Paragraph 21 (1) of the First Law on Specific Health Services (IX) is also unconstitutional.
61. The motion to abolish Paragraph 29 (1) of the Second Civil Code is manifestly unfounded, since the Constitutional Court found nothing unconstitutional in the present case to require medical confirmation for the purposes of a "statutory" sex change (IX. 3). The proposal to abolish the remaining provisions of Act No 373 / 2011 Coll., on Specific Health Services, as amended, is also manifestly unfounded, as the provisions in question merely regulate the conditions for "operational" sex change by surgical procedure, the unconstitutional of which the appellant does not dispute in argument (IX. 4). According to the Constitutional Court, the proposal to declare the non-constitutionality of Articles 62 (1) and 72 (3) and (5) of the Matrices, the name and surname Act and the amendment of certain related laws, as amended by 31.12.2023, is also manifestly unfounded, since the alleged unconstitutionality of the terms of the change of name arises from the unconstitutional conditions for sex change, not from the amendment concerning the name and surname change (IX).
Opposition of the terms "status" of sex changes with the right to protect physical integrity and personal autonomy in conjunction with human dignity
62. Gender change within the meaning of Paragraph 29 (1) of the First Civil Code (i.e. "status" sex change) occurs by performing surgery while fulfilling two different conditions: (1) preventing reproductive function; (2) transformations of sex organs.
63. The first condition of "preventing reproductive function" simply means that a person must not be able to conceive a child, i.e. continue to reproduce after the sex change has been completed. The practice and doctrine are established in the interpretation that to achieve this goal, at least hysterectomy (removal of the uterus) or orchiectomy (removal of the testicles) should be performed [see FRINTA, O. In: SVESTKA, Jiří. Civil code: comment. Volume I (Sections 1 to 654). Praha: Wolters Kluwer, 2014, § 29; FIFKOVÁ, H. Gender identity disorders. In: WEISS, Peter et al. Sexuology. Praha: Grada, 2010, p. 458; or BARŠ, A. Scalpel and soul. A sex change under the new civil code. Medical and bioethics magazine. OJ C 409, 17.12.2013, p. 1.
64. The second legal requirement in the form of "sexual organ transformations" includes the following surgical procedures: In the case of male transplants (female to male), it is primarily masectomy (breast removal), hysterectomy (uterus removal), bilateral ovariectomy (ovarian removal), metaidoioplasty, phaloplasty, scrotoplasty and urethroplasty (neopenesis and scroplasty). In the case of trans women (small to female), it is an orchiectomy (testicular removal), penectomy (penis removal) and the formation of neovagina (includes vaginoplasty, clitorideoplasty and labioplasty) [Article 1 (2) of the recommended procedure for performing sex-changing surgery in transsexual patients issued by the Ministry of Health in 2012; Bulletin of the Ministry of Health of the Czech Republic, 2012, No. 8, p. 5-6; cf. DOLEŽAL, Adam. § 29. In: MELZER, Filip, TÉGL, Petr a kol. Civil code: big comment. Volume I. § 1-117. Praha: Leges, 2013, p. 343).
65. "Status" changes in sex according to § 29 (1) sentence of the First Civil Code occurs only if an individual undergoes surgical castration (removal of the uterus or testicles) and other surgical procedures aimed at transforming sex organs.
66. The Constitutional Court has reached the following conclusions in assessing the compliance of the defined legal conditions of sex change under Paragraph 29 (1) of the First Civil Code: First, the statutory regulation of "statutory" sex change constitutes a significant interference either in the physical integrity of people seeking to change sex or in their right to self-determination and personal autonomy [IX. 1 a)]. Secondly, the legal requirements of "statutory" sex change can pursue a legitimate objective of ensuring legal certainty and stability [IX. 1 b)]. Thirdly, the requirements of the surgical transformation of sex organs and the exclusion of reproductive function only for the purposes of "status" sex change are contrary to the fundamental right of trans-human to protect the physical integrity and personal autonomy and their human dignity [IX. 1 (c)].
Intervention into physical integrity and personal autonomy
67. The guarantee of the inviolability of a person consists in the protection of the individual's physical and mental integrity, including its health [finding sp. zn. The intervention in physical and mental integrity is "causing injury, causing or worsening of the disease, including diseases, or mental disorders, but also simply causing pain" (page II of the ÚS 2379 / 08, paragraph 11). The surgery of transforming sex organs and preventing reproductive function significantly affects the physical integrity of people seeking gender change. This intervention is invasive and sensitive, as some parts of the human body must be irreversibly removed and the intimate parts of the human body transformed.
68. The constitutional guarantees of privacy protection include the right of a person to self-determination and personal autonomy [finding sp. zn. In fact, the right to privacy includes "the guarantee of self-determination in the sense of the fundamental decision-making itself, including the decision-making of the organisation of own life '[finding sp. zn.
69. The right to self-determination and personal autonomy under the Constitutional Court also falls under the decision of a person, how he will express his identity on the outside, i.e. to express what kind of person he feels to be. If someone identifies permanently with a gender different from that assigned to him according to his biological characteristics, and wishes to demonstrate itself accordingly, this is a free decision of the individual himself falling within the protection of the right to self-determination and personal autonomy. This is a decision that has been recognised by the Czech legislator for more than three decades (cf. § 27a of Act No. 20 / 1966 Coll., on the care of the health of the people, as amended since 1. 1. 1992), although it does so in a constitutionally problematic way. If an individual is to have a real right to self-determination and is to make real decisions about the organisation of his or her life, he or she should also have the space to experience his or her permanent sexual affiliation. In other words, personal autonomy also includes the decision of a person to live and act in society in accordance with the person he feels seriously and demonstrably to be, and therefore also how subjectively he perceives his sex.
70. The existence of the existing statutory regulation of sex change constitutes an intervention in the right of persons seeking sex change guaranteed by Article 7 (1) of the Charter and Article 8 of the Convention. The law requires certain people to either undergo intensive surgical procedures or accept that the state officially (administratively) does not recognise their decision to permanently experience and demonstrate belonging to a gender different from that assigned to them according to their biological characteristics.
71. The first choice to undergo invasive and irreversible surgery for the purpose of fulfilling the legal conditions for gender change inevitably leads to interference in body integrity.
72. The restriction of privacy is the second. If a person does not agree to perform surgery, it will not achieve a state-recognized gender change, which can affect his daily social and private life. The unaltered legal sex, for example, will be mentioned in human documents, reflected in the form of a birth number and "recorded" in its officially registered name and surname form.
73. As the appellant's case shows, the occasional need to use state-registered information that does not correspond to a significant decision by a person to act as a member of a different sex may constitute a perceived restriction. In all cases where trans people are required to submit documents or state an official name and surname, they are exposed to potential confrontation over their sex without taking a free decision. In fact, in such a situation, sensitive information is discovered that the individual concerned is a person seeking gender change and has not yet undergone surgery to change. This represents an intervention in the sphere of the right of people seeking to change sex to self-determination, personal autonomy and privacy.
74. It can be summarised that the legal regulation of "statutory" sex changes constitutes a significant intervention either in the physical integrity of trans-human beings, because in order to recognise this change, the State requires the provision of surgical procedures, or in their right to self-determination and personal autonomy, because they cannot act fully in accordance with their seriously perceived identity without undergoing the required surgery.
Legal certainty as a legitimate objective of intervention
75. The right to the protection of physical integrity and personal autonomy under Article 7 (1) of the Charter, in conjunction with Article 8 of the Convention, is not absolute and may be constitutionally limited by law if the restriction pursues a legitimate objective and is proportionate to its achievement. According to the Constitutional Court, the legal conditions of "statutory 'gender changes can pursue a legitimate objective.
76. The legal conditions for the change of the "status" of sex changes (in the broad sense of the word) may serve to ensure legal certainty in order to prevent arbitrary changes in sex "according to mood," as well as changes in unauthentic and purposeful. The legal requirement is to ensure a certain degree of stability of individual status.
77. The officially registered sex of an individual is a status issue which is important not only for himself, but also for his surroundings and, in its consequences, for the whole of society. The Czech legal order is based on binary gender differentiation, the individual distinguishes between men and women in different areas according to their sex. Therefore, the State may have a legitimate interest in defining the conditions for a "status" change of sex, so that the status of an individual is clear and that the authenticity of the sex status is guaranteed. The ECHR also points out that the requirement of legal certainty justifies the introduction of strict procedures in order to verify the fundamental motivation of the request for the change of an officially registered sex (judgment of the ECHR in case S. V. v v v v Italy of 11.10.2018 No 55216 / 08, § 69).
78. The legitimate objective of legal certainty and stability in relation to the individual conditions of the "statutory 'sex change can be noted as follows: the contested regulation requires, first of all, that surgical procedures are" transforming sex organs'. When undergoing the full range of procedures used for transformation, the original sex organs are related to the target sex organs. Even if an individual does not (and cannot) acquire the sex organs of the opposite sex in the right sense (chromosomes do not recognize changes and newly created tissue structures do not produce sex cells or sex hormones), their appearance is closer to the target sex.
79. The similarity of sex organs to the target sex may follow the legitimate intention of ensuring legal certainty and stability; that the state-recognised status of an individual at least partially corresponds to the sex that would be assigned to a person on the basis of his biological characteristics. If the status of the majority of people is determined by "objective" biological characteristics (sex organs), it may be legitimate for the State to register, in the context of maintaining legal certainty and stability, a status that corresponds to the biological features of the sex of most people. In other words, if the legal status, which is normally based on individual biological characteristics and with which rights and obligations are linked, is to be stable and secure for all individuals in society, it may be legitimate for it to be based on the same (or at least similar) aspect also for those who undergo gender change.
80. Similarly, it can be argued that the legitimate objective of ensuring legal certainty and stability (in the broad sense of the word) can be pursued by the second legal condition of "statutory" gender change - the exclusion of reproductive function. The inability of people to conceive and bear children after gender change is intended to ensure that it is preserved in the legal order enshrined in the "traditional" concept of parenthood (especially motherhood). The legislature is a condition of preventing reproductive function from seeking to protect the consistency and stability of the rule of law in the field of parental status issues, which may be generally legitimate (cf. NSS judgment in Case 14 above).
81. Summary: it can be argued that both legal requirements of "statutory" sex change can pursue a legitimate objective - ensuring legal certainty and stability. However, other aspects must also be seen.
Unconstitutionality of legal conditions "statutory" sex change
82. With a broad understanding of the legitimacy of the objectives pursued, it can be concluded that the legal regulation of "statutory" sex change can pursue a legitimate objective of ensuring legal certainty and stability. According to the Constitutional Court, however, the legal requirements for the surgical transformation of sex organs and the exclusion of reproductive function are in direct conflict with the fundamental right of trans-people to protect their physical integrity and personal autonomy, particularly because they violate their human dignity.
83. According to Article 1 of the Charter, people are equal in dignity. Human dignity is, above all, the inner value of every human being with whom the uniqueness of a human being is associated. The preservation of human dignity requires a person to be treated as a person and not as a thing [finding sp. zn. IV. ÚS 412 / 04 of 7.12.2005 (N 223 / 39 CollU 353); Findings sp. zn. II. ÚS 2268 / 07 of 29.2.2008 (N 45 / 48 SbNU 527), paragraph 43.
84. The fundamental constitutional requirement of equality of people in dignity means that each individual has dignity as a human being regardless of his or her characteristics, physical or mental status, achievements or social status [cf. decision of the Federal Constitutional Court, BVerfGE 87, 209 (228)]. As stated by the Constitutional Court in the sp. zn.
The case-law of the Constitutional Court places human dignity at the heart of the rule of law itself and defines it as part of the "humanity" itself. A breach of human dignity occurs when an individual is placed by state power in the role of an object, when it becomes a mere means and is reduced to a species interchangeable. The Charter of Fundamental Rights recognises the specific quality of a person as a body and prohibits a person from being exposed to an act that would call into question his or her affiliation with the human family. Equality between people in dignity and rights is the basis for recognising the value of each person, regardless of its other characteristics and usefulness or benefit to the whole.
[see sp. zn. Pl. ÚS 7 / 15 of 14.6.2016 (N 110 / 81 SbNU 729; 234 / 2016 Sb.), paragraph 45; see also sp. zn. Pl. ÚS 43 / 10 of 13.4.2011 (N 68 / 61 SbNU 69; 130 / 2011 Sb.), paragraph 34; find sp. zn. I. ÚS 557 / 09 of 18.8.2009 (N 188 / 54 SbNU 325); and find sp. zn. Pl. ÚS 83 / 06 of 12.3.2008 (N 55 / 48 SbNU 629; 116 / 2008 Sb.)].
85. According to the Constitutional Court, the legal conditions of "statutory" sex changes are unconstitutional, mainly because they enforce surgical transformations of sex organs and prevent reproductive function automatically from being made available to all people seeking to change legal status. According to the existing regulation, surgical procedures must also be carried out by people who do not wish to transform their sex organs and prevent reproductive function from happening, which is contrary to the prohibition to treat them as an object and not as a person.
86. The legislation under review prevents the consideration of individual interests and the situation of specific individuals. The decisive criterion for "status" sex change is whether or not a human body vessel has been modified by surgery. It is contrary to human dignity - in accordance with which the right of transports of people to protect physical integrity and personal autonomy must be interpreted - so that the State requires them to adapt their body's appearance and functionality for the purposes of changing the legal status of sex.
87. It is manifestly disproportionate to require an invasive and irreversible surgical procedure, which is also risky and threatening the health of the persons concerned, only to maintain legal certainty and stability. The objective pursued can be achieved in a more gentle manner. For the purposes of "status" sex change, for example, it would be possible to use diagnostic opinions from several independent specialised sexologists demonstrating the inreversible conviction of the individual concerned regarding the change in his sex, supplemented by a time test (one would have to prove that he is permanently "suffering from life in the wrong body"), etc. This would ensure that gender change is not arbitrarily abused and that individual status is clear. Potential conflicts in different areas of the rule of law can also be avoided in other, more gentle ways - while maintaining the distinction between individuals on the basis of their gender status.
88. The legal conditions of "statutory" sex changes do not stand in the constitutional test even in their individual assessment. The first condition of "transformation of sex organs," i.e. their similarity to the target sex, may be that it is not appropriate, let alone appropriate, to ensure legal certainty and stability of the legal order. The physical form of the sexual organs falls within the deeply intimate sphere of every human being, and the other people are normally hidden. In the ordinary course of action, therefore, the consistency between the state-registered sex and the actual sex organs is not detectable. Simply put, if human sex organs resemble the biological characteristics of a man, it does not automatically mean that other people will perceive him as a man. The way other people treat a person with regard to their sex, the real form of sexual organs does not affect them. Therefore, the consistency of the legal status of an individual with the form of its sex organs will not ensure complete stability and legal certainty.
89. The fact that in society it is possible to act in the role of sex, even without the operational change of sex organs, is also aware of the legislature, if it requires people who are seeking an operational change of sex to demonstrate "the ability to live permanently as a person of the opposite sex" [§ 21 (2) (a) of the Law on Specific Health Services]. Therefore, in everyday life, people seeking gender change must first act as target sex persons prior to surgical interventions in their sex organs (see the relevant recommended practice of the Ministry of Health 2012, p. 5).
90. If the possible non-compliance of the "legal sex 'with" biological sex' is not significantly affected by the eligible private legal relations of most people, it is not appropriate, according to the Constitutional Court, to require compliance in order to maintain legal certainty and stability. Similarly, it is not appropriate to require a certain form of sexual organs or to maintain stability and legal certainty in the public areas of the rule of law. The different treatment of an individual by the State on the basis of its gender status is not, by default, directly based on the distinction of sex organs.
91. The Constitution is not even the second condition of the "status" change of sex - the exclusion of reproductive function. It is not constitutionally acceptable to make a State-recognized sex change conditional on a breach of fertility function without a particular person wishing to do so, given the severity of such intervention. The reproductive function of a person is treated in this respect by an instrumental nature only because of a certain quality and identity of an individual, contrary to the requirement of equality in dignity and the right of everyone to self-determination and personal autonomy.
92. Also, according to the case law of the European Court of Human Rights, it is contrary to Article 8 of the Convention if States make it conditional on official sex change by preventing reproductive function (sterilisation). In the judgment in A. P., Garçon and Nicot v France, the ECHR identified as a contradiction with Article 8 of the Convention the French regulation of gender change, which, although not requiring surgical castration, did not require the submission of surgical castration, nevertheless made the official sex change conditional on the completion of (hormonal) treatment which would be highly likely to result in sterilisation [ECHR judgment in Case A. P., Garçon and Nicot v France of 6.4.2017 No 79885 / 12, 52471 / 13 and 52596 / 13, § 119- 123]. The judgment of A. P., Garçon and Nicot is now part of the established case-law of the ECHR (see, for example, the ECHR judgment in case S. V. v Italy of 11.10.2018 No 55216 / 08, § 31; X against the former Yugoslav Republic of Macedonia of 17.1.2019 No 29683 / 16, § 38; X and Y against Romania of 19.1.2021 No 2145 / 16 and 20607 / 16, § 158 to 165; O. H. and G. H. v Germany, 4.4.2023 No 53568 / 18 and 54741 / 18; R. K. v Hungary, 22.6.2023 No 54006 / 20, § 52).
93. Summary: The legal requirements of the surgical transformation of sex organs and the prohibition of reproductive function for the purposes of "status" sex changes are contrary to the fundamental right of trans-human transplants to protect physical integrity and personal autonomy and to their human dignity (Article 7 (1) of the Charter in conjunction with Article 8 of the Convention and Article 1 of the Charter). Paragraph 29 (1) of the First Civil Code was therefore annulled by the Constitutional Court.
Unconstitutionality of the legal conditions for making reproductive functions impossible in the Law on Specific Health Services
94. The reasons for the non-constitutionality of § 29 (1) of the First Civil Code apply mutatis mutandis to the provisions of § 21 (1) of the First Law on Specific Health Services. In fact, both provisions are identical in the legal order to define gender change by making it conditional on surgery and preventing reproductive function, which is unconstitutional for the reasons set out above. Paragraph 21 (1) of the first sentence of the SAA is therefore also contrary to the fundamental right to protect physical integrity and personal autonomy in conjunction with human dignity under Article 7 (1) of the Charter in conjunction with Article 8 of the Convention and Article 1 of the Charter. The exercise of "operational" gender change in people who wish to undergo it does not infringe their right to the protection of physical integrity and personal autonomy in conjunction with their human dignity, as set out in points 98 and 99 below.
Application for annulment of § 29 (1) of the Second Civil Code
95. If the Constitutional Court abolishes the provisions of Paragraph 29 (1) of the First Civil Code for its illegality, Article 29 (1) shall read as follows:
"The date of sex change shall be deemed to be the date specified in the certificate issued by the health service provider. '
96. The provision in the quoted form merely provides for a rebuttable presumption that the "status' change of sex will occur no later than the date on which the provider of the sex change health services issues a certificate. At the request of a medical certificate for the purposes of a" statutory "sex change, the Constitutional Court found nothing unconstitutional in the present case - nor does the appellant argue that the" status "change should be allowed only on the basis of an individual's statement.
97. The proposal to abolish Paragraph 29 (1) of the Second Civil Code is therefore manifestly unfounded within the meaning of Paragraph 43 (2) (a) of the Law on the Constitutional Court, as amended by Act No 77 / 1998 Coll.
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Regulation Information
| Citation | The Constitutional Court found No 144 / 2024 Coll., sp. zn. Pl. ÚS 52 / 23 on the application for annulment of § 29 paragraph 1 of Act No. 89 / 2012 Coll., Civil Code, § 21 and 23 of Act No. 373 / 2011 Coll., on specific health services, as amended by Act No. 202 / 2017 Coll., and the declaration of non-constitutionality of § 62 paragraph 1 and § 72 paragraph 3 and 5 of Act No. 301 / 2000 Coll., on matrices, names and surnames, and amendments to certain related laws, as effective until 31.12.2023 |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 11.06.2024 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Public Contracts 1
Smlouva o poskytování pracovnělékařských služeb
Statutární město Brno
MUDr. Lubomír Konečný
22 500 CZK
08.09.2025
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