The European Court of Human Rights ruled that Poland violated the right of the prisoner to privacy, due to the fact that the penal institution in which he was serving punishment did not supply access to female hormones. The Court rejected the argument of the Polish government, which indicated that the attitude of the penal institution was dictated by concern for the wellness of the prisoner and the necessity of conducting specialized studies.
The case afraid a man sentenced in 2013 to 11 years imprisonment, among others, for burglary and robbery. From 2013 to 2020, he was punished in Piotrków Trybunalski prison and from 2020 to 2024 in Siedlce. At the time of the punishment in Piotrków Trybunalski, the man began to identify himself as a woman, and in 2018, under the influence of severe intellectual disorders he made autocastration, after which he was placed in the prison infirmary ward. After recuperating, he showed superior aggression, committing an attack on a prison guard, and was subsequently classified as a dangerous prisoner.
The man began demanding his designation as a female and allowing him to take female hormones. In 2018, he was examined by a sexologist who stated that he was incapable to find whether, in fact, he was suffering from a sexual dysphoria that justified hormonal therapy. At the request of the prisoner, a second opinion was drawn up, this time a psychiatrist-sexualist who, without talking to the patient, ordered hormonal therapy and surgery. In early 2019, the prison manager at Piotrków Trybunalski agreed to therapy and from that minute on, he regularly utilized female hormones for another 2 years.
In 2020, a man was transferred to a prison facility in Siedlce, where he demanded that he be given constant access to female hormones. This was opposed by a doctor who was head of the prison infirmary ward, pointing out that the continuation of hormonal therapy without an in-depth psychological, psychiatric and endocrinological examination involves a “high risk”, including cancer. The manager of the detention centre in Siedlce so made the approval to proceed the treatment conditional on the essential research.
Meanwhile, the prisoner ran out of female hormones and stopped utilizing them for 14 days. The prisoner asked a close individual to get an opinion from a psychiatrist-ginecologist who was successful in early July – the doctor recommended continuing hormonal therapy without an interview with the patient, solely on the basis of the opinion of a psychiatrist-genderologist of 2018.
On 29 July 2020, a man's lawyer brought a complaint on his behalf to the European Court of Human Rights, accusing Poland of violating his client's right to respect for private life (Article 8 of the European Convention on Human Rights), demanding a judgement of EUR 50,000 to make amends and demanding that prison authorities supply his client with access to female hormones for the duration of the proceedings.
On the following day, the Court of Strasbourg issued a provisional order ordering the immediate reintroduction of hormonal therapy. Prison authorities immediately resumed therapy, and a fewer days later, a consult was held with an endocrinologist who modified the hormones admitted by the prisoner, abandoning in part the earlier recommendations of a psychiatrist-sexualist and ginecologist psychiatrist.
In 2024, the European Court of Human Rights ruled by a majority of 6 to 1 votes that Poland had violated Article 8 of the ECHR and ruled for the prisoner EUR 8,000 compensation. In the explanatory memorandum of the judgment, the Court of Justice has derived from the right to respect for private life "the right to the protection of physical and social identity", which besides implies "the freedom to specify sex identity". The Court rejected translations of the Polish government indicating that the actions of the prison in Siedlce were motivated by concern for the patient's health. In the assessment of the ETPC, there were "strong indications that hormonal therapy was an appropriate form of treatment in the wellness state in which the complainant was present".
Judge Krzysztof Wojtyczek made a separate conviction to the judgment, pointing out that the Court was hastily assuming that hormonal therapy was indeed justified in the case of the complainant. In the judge's opinion, the Court did not take into account differences of opinion between doctors in this case: in 2018, a sexologist stated that it was impossible to make a decision on therapy without more studies and conversations with a patient (which had never been conducted), whereas in 2020 the head of the infirmary ward in Siedle prison pointed out the hazard of therapy. There was so a contradiction between the opinions of the 2 sceptical doctors of administering female hormones to the prisoner and the opinions of the 2 another doctors who advocated their administration. Prison authorities were so entitled to have doubts as to whether continued hormonal therapy was justified or not. Nevertheless, the Court has ordered the immediate resumption of hormonal therapy without cognition of medicine itself.
– The judgement of the Court is in line with the erstwhile line of case law, which for more than 20 years derives from Article 8 of the European Convention on Human Rights the right of everyone to "sex change". The explanation adopted by the ECHR is highly debated but established in practice and very seldom challenged. Among another things, by virtue of the ECHR case-law, the vast majority of European countries consider sex to be a form of private identity that each individual can choose at subjective discretion. Consequently, anyone may require access to medical services enabling him to become akin to the other sex and the legal designation of the "gender change" by the State. A fresh feature is the extension of this right to prisoners who can now anticipate access to at least hormonal therapy during imprisonment. The ECHR case-law sees a kind of ‘presumption of transsexuality’, according to which the complainant’s very assurance that ‘he is simply a woman’ is adequate to be regarded as a female in a legal sense. This is evident in the present case, where the Court in its judgement consistently refers to a transsexual man as a “woman” and uses female pronouns in relation to him. At the same time, as justice Wojtyczek rightly pointed out, the Court has dispelled the importance of opinions that do not support the prisoner's dysphoria, and has found it more reasonable to consider opinions that indicate the disorder of his ‘sexual identity’. However, the case was highly ambiguous and required additional investigation to find the final diagnosis, so the restraint of the prison authorities was justified. In this context, it is peculiarly worrying to see the zeal of the Court in the express issuing of a temporary order ordering a female hormone to be administered to a prisoner, without consulting an expert doctor who could resolve the concerns raised in peculiar by the head of the prison ward. said Filip Bator of the Ordo Iuris Institute.
Source: Ordo Iuris
TG
