Does Transgender Sterilisation Law violate the Right to Health (Article 11 of the European Social Charter) in the Czech Republic?
The Czech Republic is a party to the European Social Charter (ESC) including its collective complaint mechanism (a mechanism to ensure compliance with these economic and social rights). Thus the Czech Republic effectively accepted its adherence to the provisions of the ESC and this includes Article 11, which concerns the right to the protection of health. Article 11 of the ESC stipulates that “everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable”.
Despite the fact that the Czech Republic is party to the ESC it has come under fire for a policy which requires transgender people to undergo sterilisation surgeries in order to legally change their gender. This policy has generated a lot of controversy because of the fact that the European Committee of Social Rights (a regional human rights body that oversees the protection of certain economic and social rights in most of Europe), amongst others, have argued that the requirement to undergo the sterilisation surgery violates the right to health under Article 11.
Non-governmental organisations including Transgender Europe and ILGA-Europe have jointly lodged a complaint (no.117/2015) alleging that the legal requirement of sterilisation imposed on transgender people wishing to change their personal documents so that they reflect their gender identity is in breach of the above mentioned provisions as well as the non-discrimination principle mentioned in the preamble of the 1961 European Social Charter.
Under the law of the Czech Republic there are two pieces of legislation that explicitly refer to sterilisation. Firstly, the Civil Code (2014) states that “the change of sex is accomplished by a surgical operation involving the termination of reproductive function and a change of genitalia” and that the date of the change of legally registered sex is considered to be the one stated by the health service which provided the treatment in question. Furthermore, the Act on Specific Health Services (2011) stipulates that “sex change of transsexual patients is …understood as the carrying out of medical operations, whose aim is to surgically change sex and at the same time disable the reproductive function.”
In reference to how the sterilisation requirement constitutes a violation of the right to health in the collective complaint it was argued that “sterilisation is a major medical procedure, with irreversible consequences for a person’s health, especially reproductive health, self-conception and mental well-being.” Furthermore, as with any medical procedure, consent is a vital principle, which is required in order to carry out said procedure. It has been argued that the informed consent of the patient is compromised ‘where access to a benefit or right is predicated on agreement to undergo a medical procedure’. Despite a previous collective complaint of International Federation of Human Rights League (FIDH) v France (no. 14/2003), which concluded that ‘the legal recognition of a person’s gender identity as male or female has been designated as a fundamental right under international law’, Czech law makes access to this legal recognition of an individual’s gender identity conditional. The ‘conditional’ aspect here depends upon the individuals agreement to undergo sterilisation, regardless of the preferences of the person in question. The effect of this is summarised in the collective complaint against the Czech Republic in which transgender people are faced with a closed choice between two fundamental rights, namely, the right to health, in its various incarnations, and the right to legal gender recognition.
Council of Europe, ‘New complaint registered: Transgender Europe and ILGA-Europe v. Czech Republic, Complaint No. 117/2015’ (coe.int, 27 April 2015) <https://www.coe.int/en/web/hu==man-rights-rule-of-law/news-hub-monitoring/-/asset_publisher/TmBjT6UsJDjO/content/new-complaint-registered-transgender-europe-and-ilga-europe-v-czech-republic-complaint-no-117-2015/10737916?_101_INSTANCE_TmBjT6UsJDjO_viewMode=view/ > accessed 2 January 2019.