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Regarding the form of a birth identification number

Judgment Pl. ÚS 2/20

The Plenum of the Constitutional Court dismissed the motion to repeal Section 29(1) of the Civil Code, Section 21(1) of the Specific Health Services Act and Section 13(3) of the Registration of Population Act in the words "for women increased by 50,".

Section 29(1) of the Civil Code in essence provides that gender reassignment might occur only after a transgender person undergoes surgery which disables their reproductive function and “transforms” their genitalia. In other words, a transgender person willing to change their legal sex must undergo surgical castration – namely removal of testicles in men and removal of uterus in women – in order to achieve gender reassignment. In the same vein, Section 21(1) of the Specific Health Services Act lays down a rule that gender reassignment of a transgender person requires performance of surgical removal of their reproductive organs. Finally, Section 13(3) of the Population Registration lays down rules concerning the formation of identity numbers. Specifically, it provides that identity number of women is increased by 50 in the part which encodes month in which they were born.

The complainant – who was born a man but considers themselves to be a person of neutral gender or, if forced to choose between two genders, a female – sought a change in their identity number from male form to either female or neutral form. As the complainant’s request was not granted by relevant authorities, they lodged a constitutional complaint accompanied by a motion to annul the above-mentioned statutory provisions. The essence of the constitutional complaint was the objection that the fundamental rights and constitutional principles require that the complainant should have the right to legal gender recognition even if the conditions set out in Article 29(1) of the Civil Code were not met, as well as the right to have their identity number registered either in neutral or, alternatively, in female form.

The Second Chamber of the Constitutional Court referred the case to the Plenum, proposing annulment of Section 29(1) of the Civil Code, as this was – in the opinion of the Justices of the Second Chamber – the only statutory provision that was in fact applied in and was decisive for the complainant’s case. 

The Constitutional Court ruled that the motion to annul the abovementioned statutory provisions is not well-founded and, therefore, is dismissed.

Firstly, the Constitutional Court (more specifically, the relevant minority of the Justices pursuant to Section 13 of the Constitutional Court Act) reasoned that it is unclear what the complainant seeks to achieve, since they cannot even decide whether they consider themselves to be a male or a female, and whether they wish to have their identity number registered in female or “neutral” (i.e., male) form.

Subsequently, the Constitutional Court decided to assess the constitutionality of only Section 13(3) of the Population Registration Act in the words "for women increased by 50,". The Justices considered this was the only statutory provision that was applied in the case and whose constitutionality should be thus assessed by the Constitutional Court.

The Constitutional Court concluded that there is nothing unconstitutional in the fact that the State records information about a person’s sex in their identity number, nor in the fact that sex/ gender is conceived of in a binary manner for the purposes of formation of identity numbers. The Justices justified this conclusion on the grounds that in the Czech Republic, people are divided into women and men. This understanding of the binary existence of the human species does not originate in the will of the State (in the sense of the will of public authority), since the public authority has merely accepted it as a social reality. The division of persons into men and women is also acknowledged by the Czech legal order, including the provisions of the Constitution and certain international human rights treaties by which the Czech Republic is bound. 

The recognition of the existence of only two sexes is therefore not constitutionally problematic, nor does the fact that the law might differentiate between men and women in certain specific situations raise any constitutional questions. Moreover, the Constitutional Court had reached the same conclusion, inter alia, in its judgement Pl. ÚS 42/04 of 6 June 2006. According to this judgement, the legal distinction between men and women is constitutionally acceptable as long as it is based on objective and reasonable grounds.

Thus, the Constitutional Court concluded that it is recognised and envisaged by the constitutional order that people are divided into men and women, and that this division serves certain legal and practical purposes. It further reasoned that it seems only logical that the State might record information about sex of persons in some form. The Constitutional Court found no persuasive constitutional argument why, in principle, sex should not be recorded in an identity number; however, it noted that it might be advisable to consider whether a widespread practice of requiring persons to identify by their identity number is compatible with the right to protection of privacy.

According to the Constitutional Court, the complainant’s argument that the sex inferred from person’s identity number might not correspond to the sex/ gender with which they identify internally, which in turn might subject them to undue hardships in everyday life, cannot alter the abovementioned conclusion. The purpose of the impugned provision concerning the formation of identity numbers is not to present the sex/ gender with which the bearer of the identity number identifies. On the contrary, the information about a person's sex which can be inferred from their identity number says and is meant to say nothing about the person's inner feelings or their gender self-identification; it is designed merely as a tool to keep record of certain relevant information, including person’s sex. By keeping evidence of a person's sex in the form of identity number, the State in no way determines with which gender the person might or should self-identify.

The Constitutional Court concluded that it is compatible with the constitutional order for an identity number to contain information about the sex of the bearer, inter alia, because this information may be relevant or even necessary for the State to carry out its functions and obligations. This distinction finds its ratio and origin in the different biological characteristics of men and women from which their sex is determined and for which the distinction between them may in some cases seem relevant (e.g. for purposes of certain gender-specific social-security guarantees and determinations, access to certain gender-specific health treatments etc.). The distinction between two legally recognised sexes in the identity number is linked to this legal reality and, indirectly, to social reality. Conversely, information about the gender with which a person self-identifies is essentially irrelevant in this context. Treating people differently on the basis of gender with which they self-identify would lack the objective and reasonable grounds that constitutional order requires for differential treatment. 

Thus, it is logical that an identity number contains information about the sex of the bearer which might be and is regularly recorded by the State in order to fulfil its obligations and effectively perform its functions. On the other hand, recording information about person’s gender identity has no objective and meaningful use to the State and should remain beyond the State's reach because there is no reasonable and constitutionally compliant basis for such recording. Even if the person concerned finds unpleasant that the State records certain relevant information, such as their sex, the right to privacy under Article 7(1) of the Charter does not protect their wish to conceal this unpleasant reality from the State and others, to prevent the State from keeping record of it and to force the State to record information which does not correspond to reality, since this would negate the purpose of recording the information in the first place.

Finally, the Constitutional Court recalled that its role is to protect constitutional order (Article 83 of the Constitution), not to protect or perhaps even promote modern trends; however, its role does not lie in preventing such trends from shaping political or legal reality either. The Constitutional Court is not and should not be an arbiter which enters culture wars and actively shapes the direction of social development in the Czech Republic. Therefore, it has repeatedly stressed that it is the sole responsibility of the Parliament of the Czech Republic to resolve fundamental questions concerning humans as a biological species, their life and relationships. The judicialisation of these issues may lead to the politicisation of the Constitutional Court and subsequently to the weakening of its position as an impartial and independent guardian of the constitutional order.

Dissenting opinions were filed by Justice Kateřina Šimáčková and Justices Vojtěch Šimíček, Ludvík David, Jaromír Jirsa, Pavel Šámal, David Uhlíř and Jiří Zemánek.