According to Poland’s Conservative legal think-tank Ordo Iuris, the European Court of Human Rights (ECHR) has effectively ruled that everyone has the right to choose his or her “gender” at their own discretion in a prison environment.
The ECHR in July of this year ruled that Poland had violated a male prisoner’s right to privacy because the prison where he was serving his sentence did not provide him with access to female hormones.
Filip Bator from Ordo Iuris argued that the ECHR had now effectively said that everyone has the right to “change their sex.”
“Thanks to ECHR case law, the vast majority of European countries recognise ‘gender’ as a form of private identity that anyone can choose for oneself at their discretion,” Bator told Brussels Signal.
According to him, that meant “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,” Bator said.
“There is a ‘presumption of transsexuality’ in the ECHR’s verdict, according to which the mere assertion by a plaintiff that ‘he is a woman’ is sufficient to recognise him as a woman in the legal sense,” resulting in the court ordering “the administration of female hormones to the prisoner without consulting medical opinion” .
In 2013, the Polish prisoner was sentenced to 11 years in prison for burglary and, while serving their sentence, they began to identify as a woman.
In 2018, their mental condition deteriorated and they castrated themselves. After hospital treatment, they are described as attacking a prison guard, subsequently being classified as a dangerous prisoner.
The individual demanded to be recognised as a woman and asked for female hormones to be given to them. This was eventually carried out, despite doubts from one doctor, with treatment being carried out for the next two years.
In 2020 the prisoner was transferred to another jail where medical staff took a different view on his hormone therapy. Staff at this new facility argued that gender dysphoria had not been determined and that continuing hormone therapy would increase the risk of cancer in the prisoner. Gender dysphoria refers to a condition that causes distress or discomfort when a person’s gender identity does not match the sex at birth.
The prisoner’s attorney filed a complaint with the ECHR, accusing Poland of violating his client’s right to his private life being respected. The prisoner’s legal team demanded €50,000 in damages and for hormone therapy to be restarted. The Strasbourg court issued an interim order for the resumption of that therapy.
In July this year, the ECHR issued a six-to-one ruling that Poland had violated the prisoner’s human rights and awarded €8,000 in compensation.
In its majority opinion, the court ruled the right to respect for private life included “the right to protection of physical and social identity,” and that “the freedom to define one’s gender identity” was also a right.
The ECHR rejected the Polish Government’s arguments indicating that concerns for the patient’s health had guided the prison facility’s actions.
One of the judges, Justice Krzysztof Wojtyczek, opposed the verdict, challenging the presumption that hormone therapy was justified.
According to the Polish ECHR judge, the court failed to 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 in another prison noted that the therapy carried “risks.”
This meant there was a contradiction between the opinions of two doctors sceptical of dispensing female hormones to the prisoner and the opinions of two other doctors who favoured the move.
This, argued Wojtyczek, was evidence of sufficient grounds for the prison’s authorities to have concerns about continuing hormone therapy for the prisoner.
