Image Description: Seven small Trans rights flags erected on grass. There are flowers growing in the background.

On 17.2.22 the ECtHR passed judgment in another trans-rights case, finding that the applicant’s (Y’s) inability to have his gender changed on the “full” copy of his Polish birth certificate could not give rise to a violation of Article 8 ECHR (private and family life). The facts were different from those in B and Christine Goodwin. Y was able to establish his identity by means of ID, as well as a “short” extract of his birth certificate, that only mentioned the reassigned gender. As a result, he could live, without difficulty, as a married man with a wife and a child in France.

The ECtHR also rejected Y’s complaint under Article 14 ECHR (non-discrimination). Y had argued that, in Poland, transgender persons were treated less favourably than some adopted children. The judges there had the power to order that in “full” adoption cases the full birth-certificate be changed with the adopters figuring as the child’s parents at birth. (A court could, of course, authorise disclosure of the circumstances leading to the change in exceptional circumstances.) The ECtHR, however, considered that the two “situations (were) not sufficiently similar to be compared to each other.”

The message conveyed by the judgment seems clear. The ECtHR will take a practical approach in transgender cases, focusing on real – as opposed to artificial – problems that people face. This appears to be the line followed in respect of most ‘categories’ of complaints in Strasbourg. However, the ECtHR would be neglecting its role if, in addition to being pragmatic, it did not seek to develop a proper discrimination theory to help member states make the right choices in the fields covered by the ECHR.

Y v. Poland is important in this respect, being one of the few cases that raise the challenging question of the ‘right comparator’. The ECHR bans discrimination on the ground of any “other status”. Thlimmenos was another such case. Its outcome was positive for the applicant, the GC considering that an exemption should have been made, in favour of army conscientious objectors found guilty of insubordination, from a general rule excluding those convicted of serious offences from the chartered-accountant profession; their situation was ‘relevantly dissimilar’ from that of other criminals.

Y v. Poland cites another GC judgment, Hämäläinen, to support its conclusion that trans people and adopted children were not in analogous situations. Hämäläinen had tried to compare the situation of trans to cisgender people. This was not particularly helpful. Although the result should, of course, be no discrimination between the two, the general rules on cisgender people might not provide the most useful pointers on how to create appropriate exceptions to accommodate trans needs. Y v. Poland is fundamentally different. Here two groups (trans people and adopted children) were requesting exemption from a general rule seeking to uphold the public interest in a historically accurate birth-record system. Their arguments seemed to be based on the same consideration: the distress caused should certain details concerning their birth be known. Why did the First Section conclude that they were they not placed in analogous situations? And why should adopted children be deemed worthy of protection while trans people are not?

Part of the problem is that Poland has not legislated for trans rights. Legal recognition is based on a Supreme Court decision. Although in July 2015 Parliament passed a bill that, according to a third-party intervener, would have catered for Y’s concerns, the President of the Republic vetoed it.

In the era of subsidiary, Strasbourg attaches a lot of importance to the way in which (legitimate) domestic actors balance (with the right considerations in mind) the different interests at stake. In the case of Poland, the interest in keeping the gender unchanged in the full version of the birth certificate does not seem to carry weight, given what its authorities have decided in respect of adopted children. Should Y’s application have been, nevertheless, rejected on the sole basis that all he was “potentially” suffering was “some inconvenience” (§81)? Trans rights is one area where changing perspective might be salutary. Y had complained about “mental suffering” and “being demeaned” and his perception of his situation should have been allowed to carry some weight. In the circumstances of the case, in the absence of any countervailing interest worth writing home (in Poland) about, this should have tipped the balance in his favour.