WARSAW. The Polish Supreme Court has issued a resolution that fundamentally changes the current process of changing the gender in records. Previously, changing the gender in documents was done through a court process, where it was necessary to demonstrate the grounds for such a decision. Now the situation in Poland has changed.

Gender change without procedural proceedings

Currently, instead of traditional procedural proceedings, gender change is to take place in non-procedural provisions. This means a great facilitation of the process and the absence of the defendant’s appearance. For the same reasons the changes are criticized and praised.

From a legal perspective, there is a lot of use in the change. Such processes were artificial processes, occurring in a different meaning only for formalities. In practice, there could have been no „dispute” in a court dispute.

No Defendants

However, the real big change is that as a result there is no longer need for a defendant, who was usually the parents or spouse.

As the Polish Supreme Court’s analysis showed, the spouse is a person with interest in the gender change case, because changing gender would lead to a same-sex marriage. At the same time, the Supreme Court found that the outcome of the proceedings to change the child’s registered gender does not actually concern the rights of the parents and they are not among the interested parties in the case.

Official information from Polish Supreme Court

„While resolving the legal issue presented by the Prosecutor General, the Supreme Court considered the obvious discrepancy in the jurisprudence of the courts as to the group of entities that should participate in the proceedings initiated to obtain a change in the birth certificate regarding gender, as well as the fact that in the Polish legal system there are no provisions directly regulating the status of a person whose registered gender, as indicated in their birth certificate, is different from his or her perceived gender. 

According to the model developed to date in jurisprudence and implemented by the courts, proceedings in a case concerning a change of gender designation were based on Article 189 of the Code of Civil Procedure (CCP), and the defendant party was most often parents of the person applying for the designation of the opposite gender to that indicated in the applicant’s birth certificate. In some proceedings, the defendant was also the spouse and children of the applicant. Each time, the obtained final judgement was the basis for including an additional note in the applicant’s birth certificate regarding the designation of his or her gender. However, the procedural mode of proceedings in such cases raised serious doubts from the outset as to the defendant in such cases, the implementation of the adversarial principle (audi alteram partem), as well as the nature of the lawsuit and the judgment determining gender, issued under Article 189 of the CCP.

The Supreme Court, following a comprehensive analysis of the issue of the group of entities that should participate in the proceedings for changing the sex designation in the birth certificate of a transgender person and the appropriate course of judicial proceedings in which such a request should be considered, concluded that such cases should not – as is currently the case – be conducted in a process mode, but in non-litigious proceedings, applying Article 36 of the Law on civil status records (LCSR) by analogy.

The Supreme Court took into account the fact that, under the current state of law, an individual’s gender is part of his or her civil status (Article 2(1) in conjunction with Article 49(2)(1) of the LCSR), and all proceedings provided for in the Act of 28 November 2014 – Law on civil status records, which are aimed at ensuring the correct content of the civil status record (regarding rectification, supplementation, cancellation and determination of its content) are conducted in non-litigious proceedings at the court stage. 

The structure and mechanisms of non-litigious proceedings place greater emphasis on matters of public interest and minimise doubts regarding the issue of legal capacity.

Choosing non-litigious proceedings allows for the use of its extremely flexible structure. First of all, it removes the need to ensure the adversarial nature of the proceedings, as non-litigious proceedings can be carried out with the participation of only one participant if only one entity’s rights are affected by the result of the proceedings. Therefore, there is no need to create an 'artificial’ defendant, as is the case in proceedings for a change of gender designation under Article 189 of the CCP. Essentially, a lawsuit is based on the idea of a legal dispute. Whereas a gender reassignment process is not the result of a dispute between two parties with opposing interests, in which there is a need for resolution of the dispute by an independent entity, such as a court. While a judgement issued under Article 189 of the CCP is effective only between the parties, and therefore between the plaintiff and his or her next of kin, a decision on the merits of the case issued in non-litigious proceedings under the provisions of the law on civil status records is, as a rule, effective erga omnes.

The personal nature of cases concerning the change of gender designation in a birth certificate means that the public prosecutor and the head of the registry office, specified in Article 36 of the LCSR, should be excluded from the group of entities legitimised to file such a request.

The result of the procedure for changing the gender designation in the birth certificate concerns the personal rights of the applicant. Such a nature of the case suggests a possibly narrow understanding of legal interest in such cases. However, if the applicant is married, his or her spouse is one of the entities interested in the result of the proceedings (Article 510(1) of the CCP). In such a situation, the existing marriage of a transgender person would become a same-sex marriage if the application were upheld, which is contrary to Article 18 of the Constitution of the Republic of Poland, protecting the identity of marriage as a union of a man and a woman.

In the view of the Supreme Court, there are no convincing arguments to justify the position that the result of the proceedings to change the gender designation of a transgender person affects the rights of his or her parents and therefore they cannot be considered as parties interested in the case for changing the gender designation within the meaning of Article 510(1) of the CCP. The question of the participation of the applicant’s children in gender designation cases should be assessed in a similar way. Parental relationship does not depend on the gender designation of the parent, as the change of which does not result in the termination of the relationship between the parent and the child. The rights and obligations towards each other do not change.”

Reports >> Law & Politics >> Source: sn.pl >> Photo: Ideogram.ai >> 07.04.2025