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Regarding the form of a birth identification number II

Judgment II. ÚS 2460/19

Constitutional order does not guarantee the right to a form of birth number reflecting the gender with which the bearer of the birth number identifies internally.

I. The complainant, who was born a man but feels himself to be neither male nor female, but a person of "neutral" gender, sought a change of his birth number to a "neutral" or "female" form before the administrative authorities and the courts. The Ministry of the Interior did not find that the conditions for initiating the procedure for changing the birth number were fulfilled, as the requirements that would justify the change of the birth number (Section 17(2) of the Population Registration Act) had not been met. The action brought before the Municipal Court was dismissed, as was the subsequent cassation complaint before the Supreme Administrative Court.

The constitutional complaint was joined with an application for the annulment of Section 29(1) of the Civil Code, Section 21(1) of the Specific Health Services Act and Section 13(3) of the Population Registration Act, in the words "for women increased by 50,". This motion was referred by the Senate of the Constitutional Court to the Plenum, which, in its ruling Pl. ÚS 2/20 of 9 November 2021 dismissed it. 

II. First, the Constitutional Court referred to the conclusions adopted in the ruling Pl. ÚS 2/20, on which it continues to adhere. In the case under consideration, it considered that the essence of the case was the form of the complainant's birth number, or rather the fact that the administrative authority had refused to change that birth number; the proceedings did not concern a change of sex.

The reason for which the complainant sought a change of birth number was the fact that he did not consider himself to be a man and thus did not wish to have a birth number in the form that men have in the Czech Republic. The Constitutional Court noted that the birth number in question expressed the date of birth and also contained four essentially random digits. There is thus nothing in the birth number which expressly states, or perhaps emphasises, that the applicant is a man. The Population Registration Act establishes only a special form of birth number for women, not for men. Thus, purely on the basis of the birth number, it could only be inferred under that Act that the complainant was not a woman, not necessarily that he was a man.

It is true that if Czech society perceives gender in a binary way, the result of the complainant not having a birth number in the form used for women is that it can be inferred from his birth number that he is a man. However, this is due to the generally accepted binary understanding of human existence, not to the birth number itself, which is neutral. It is not for the Constitutional Court to change the described understanding of gender in the State.

If, then, the complainant's concern was that the birth number should at the same time directly imply that the complainant is a bearer of a "neutral" gender, there is no right under the constitutional order to have one's birth number record one's sex or gender identity. Even if it were possible to accept the view that the assignment of a birth number "inconsistent" with one's gender identity might interfere with one's constitutionally guaranteed rights, it does not follow that the mere absence of a link between the birth number and the gender identity of the bearer would also constitute such interference.

With regard to the applicant's alternative request that his birth number be changed to a "female" form, the Constitutional Court stated that not only was the applicant's gender not recorded at birth, but the applicant did not consider himself to be female. It cannot be inferred from the right to privacy or any other right guaranteed by the constitutional order that the complainant's birth number should reflect a gender which he not only does not have but also does not identify with.

The Constitutional Court further examined the relevance of the case-law of the European Court of Human Rights, concluding that the rights claimed by the complainant in the proceedings did not arise from it, since the ECtHR had so far dealt with factually and legally different cases.

In view of the above, the Constitutional Court concluded that there had been no violation of the complainant's constitutionally guaranteed rights in the case under review; it therefore dismissed the constitutional complaint as unfounded.