European Court of Human Right’s “presumption of transsexuality” in new landmark judgment against Poland

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• The European Court of Human Rights (ECHR) has ruled that Poland violated a prisoner's right to privacy because the prison where he was serving his sentence did not provide him with access to female hormones.

• The Court rejected the Polish government's argument that the prisoner's health and a need for specialized tests guided the prison's stance.

• Judge Krzysztof Wojtyczek, in a dissenting opinion to the verdict, noted that the medical opinions of the prisoner were inconclusive, so there was no basis for determining that he was, in fact, suffering from so-called “gender dysphoria”, or that his condition required hormones.

• The man also struggled with severe mental disorders and exhibited aggressive and self-destructive behavior.

• The ECHR's ruling (ECHR judgment of July 11, 2024, W.W. v. Poland) is part of a disputed line of jurisprudence, according to which everyone has the right to choose his or her “gender” at his or her own discretion.

The case involved a man sentenced in 2013 to 11 years in prison for, among other things, burglary and robbery. He served his sentence in a prison in Piotrków Trybunalski from 2013 to 2020, and in Siedlce from 2020 to 2024. While serving his sentence in Piotrków Trybunalski, the prisoner began to identify himself as a woman. In 2018, while suffering from severe mental disorders, he castrated himself, after which he was placed in a prison hospital ward. After his convalescence, he displayed elevated aggression and attacked a prison guard, after which he was classified as a dangerous prisoner.

The man began demanding to be recognized as a woman and allowed to take female hormones. As late as 2018, he was examined by a sexologist, who concluded that he was unable to rule on the basis of a single interview with the patient whether he was, in fact, suffering from “gender dysphoria,” justifying hormone therapy.  At the prisoner's request, a second opinion was ordered. This time a psychiatric sexologist prescribed hormone therapy and surgery without talking to the patient. At the beginning of 2019, the director of the prison in Piotrków Trybunalski approved the therapy, and the prisoner took female hormones regularly for the next two years.

In 2020, the man was transferred to a prison in Siedlce, where he demanded that he be given continued access to female hormones. The doctor who was heading the prison's hospital ward opposed this measure. He pointed out that continuing hormone therapy without thorough psychological, psychiatric, and endocrinological examinations carried a “high risk,” including, among other things, cancer. The director of the Siedlce Penitentiary therefore gave permission to continue the therapy on condition of the necessary tests.

In the meantime, the prisoner ran out of female hormones and stopped taking them for 14 days. The prisoner asked a close friend to arrange for a psychiatric gynecologist's opinion, which was obtained in early July. The doctor recommended continuing hormone therapy without interviewing the patient, solely on the basis of the 2018 psychiatric sexologist's opinion.

On July 29, 2020, the man's attorney filed a complaint with 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 an award of €50,000 in damages, and requesting that the prison authorities be ordered to provide his client with access to female hormones for the duration of the proceedings.

The next day, the Strasbourg court issued an interim order directing the immediate resumption of hormone therapy.  Prison authorities immediately resumed the therapy, and a few days later there was a consultation with an endocrinologist who modified the hormones the prisoner was taking, partially deviating from the earlier recommendations of the psychiatric sexologist and psychiatric gynecologist.

This year, the European Court of Human Rights issued a six-to-one ruling that Poland had violated Article 8 of the ECHR, and awarded the prisoner €8,000 in reparations. In its majority opinion, the Court derived from the right to respect for private life “the right to protection of physical and social identity,” from which “the freedom to define one's gender identity” is also a derivation. The Court rejected the Polish government's arguments indicating that the patient’s health guided the Siedlce prison facility's actions. According to the ECHR, there were “strong indications that hormone therapy was an appropriate form of treatment for the plaintiff’s state of health.”

Judge Prof. Krzysztof Wojtyczek filed a dissenting opinion to the verdict, citing the Court’s rashness in accepting the presumption that hormone therapy was justified in the plaintiff's case. According to the Polish ECHR judge, the Court did not consider the differences of opinion between doctors: in 2018, a sexologist declared the impossibility of deciding on therapy without more tests and discussions with the patient (which never occurred), while in 2020, the head of the hospital ward at the Siedlce prison noted the riskiness of that therapy. Thus, there was a contradiction between the opinions of two doctors skeptical of dispensing female hormones to the prisoner and the opinions of two other doctors who favored their administration. The prison authorities were therefore entitled to have doubts about whether the continuation of hormone therapy was justified.  Nevertheless, the Court – itself lacking medical expertise – ordered immediate resumption of hormone therapy.

Filip Bator of the Ordo Iuris Institute explained:

“The Court's ruling is part of an existing line of jurisprudence, which for more than 20 years has derived from Article 8 of the European Convention on Human Rights the right of everyone to ‘change sex.’ The interpretation adopted by the ECHR is highly debatable but well-established in practice and very rarely contested. Thanks, among other things, to ECHR case law, the vast majority of European countries recognize ‘gender’ as a form of private identity that anyone can choose for oneself at his discretion. Consequently, anyone can demand access to medical services that allow one to resemble the opposite sex, as well as legal recognition of ‘gender reassignment’ by the state. What is new is the extension of this right to prisoners, who can now expect to be provided with access to at least hormone therapy while serving a prison sentence. A kind of ‘presumption of transsexuality’ is discernible in the ECHR's jurisprudence, according to which the mere assertion by a plaintiff that ‘he is a woman’ is sufficient to recognize him as a woman in the legal sense. This can be seen in the present case, where the Court, in its opinion, consistently describes the transsexual man as ‘woman’ and uses feminine pronouns to refer to him. At the same time, as Judge Wojtyczek rightly noted, the Court disregarded opinions that did not confirm the prisoner's dysphoria, and conferred more legitimacy upon opinions endorsing his ‘gender identity’ disorder. Meanwhile, the case was highly ambiguous and required additional research to establish a definitive diagnosis, so the reticence of the prison authorities was justified. Particularly disturbing in this context is the Court's zeal, manifested in the express issuance of an interim directive ordering the administration of female hormones to the prisoner, without consulting an expert medical opinion that could have resolved the doubts raised in the case, especially by the head of the prison hospital department.”