Poland’s route to a transgender (r)evolution

Legal gender recognition, known to Polish courts since the late 1960s, stands as an example of bizarre cooperation between judges and doctors. Medical verification in gender recognition procedures is common also in other countries. Yet the Polish process seems to constantly breach human rights – and simple logic.

Foto: Creative Commons/ San Diego Shooter

During the last 50 years, gender recognition in Poland was addressed in practice, but the first  legislation on gender recognition – the Gender Accordance Act – was only proposed to the Polish Parliament in May 2012.

Current legal measures are still marked with procedural inaccuracies and multiple verification steps, which makes the Polish gender recognition process one of the most confusing in Europe. It is confusing to both persons interested in changing their gender marker and to health care providers, who often end up puzzled and unsure of their role.

Let me first clarify concepts used in this article. “Trans person” an individual who has a legal interest in changing their gender marker. “Legal interest” does not require a specific identity or expression. It is based on a belief that gender, as a personal good represented by a certain symbol in one’s documentation, is, in fact, a symbolic, albeit often troublesome feature of today’s society. Changing one’s gender marker is not a privilege – it is a basic human right and therefore should be available to anyone on a personal request. A “trans person”, in the author’s mind, is not only a person who corresponds with the classic view on transsexuality. It could be a person living outside the medical discourse, not complying to any form of ‘diagnosis,’ but still willing to change their gender marker. It could easily be an intersex person, intersex being the gender phenomenon often used to describe someone whose sex characteristics  do not comply with the classic view on male and female bodies.

Legal and medical gender recognition in Poland

Changing a person’s gender marker is a result of a court process based on article 189 of the Polish Civil Code. It is known as  the “assessment suit”, in which an individual has to confront their parents. This need of having two sides of a legal argument, requiring someone to literally file a lawsuit against one’s family, is described by the legal literature as the best possible compromise. When those regulations were formed, there was no possibility to introduce an administrative process or a voluntary or ex parte jurisdiction (iurisdictio voluntaria). The current procedure, however, seems to cause more trouble than it should. It can even end in a negative judgment, denying a person the right to gender recognition.

Real-life test

A transsexual diagnosis in Poland can be obtained through a series of tests and examinations (both psychological and physical – including head x-rays, genitalia examination and karyotype check). Those gatekeeping procedures are mostly aimed to “check” whether a person is able to transition from one gender role to the other. One of the most common elements of this method is the “real life test (RLT)”, where one is forced to live full-time as their preferred gender. Healthcare providers recommend a two-year RLT during which one is not prescribed any hormonal treatment nor is able to change their legal status. Because of its incredible social and individual invasiveness, the RLT is being gradually withdrawn. However, since there are no unitary standards on transsexual diagnosis in Poland, some diagnosticians still use it in their practice.

Apart from the RLT, a person going through gender recognition in Poland is subjected to physical examination, along with psychological and psychiatric evaluations. After those are fulfilled, the diagnostician decides whether to prescribe hormones, but usually does so after the person has  already been diagnosed as transsexual. While it is possible to receive hormonal treatment without the diagnosis, this practice might be problematic for further court procedures.

It is also important to note that no endocrinologist is involved in this process and patients are rarely asked to present results or even undergo any hormonal tests. It has been also reported that some providers do not inform their patients on the various possible side effects of hormonal treatment, including allergic reactions. Some specialists prescribe hormones without any knowledge on the issue, advising patients to inject themselves with testosterone every 3 days instead of the customary 2 or 3 weeks, for example. This is why most persons educate themselves on the subject or take their hormonal issues to other people in the community, not health care providers.

Transsexual diagnosis

Transsexual diagnosis in Poland is still a question of discussion both from a human rights perspective and the practical procedures surrounding it. Gender recognition is not only linked to giving in to a complete psychological and psychiatric evaluation, which in itself leads to self-pathologisation (a feeling of being sick or disordered), but also to invasive medical procedures (including surgeries and hormonal therapy). Hormonal therapy is mostly used for legal reasons – feminisation or masculinisation is a confirmation for the court of a person’s commitment to living in the preferred gender, along with full medical documentation.

However, a lack of strict legal regulations on gender recognition causes irregularities when it comes to surgery requirements. To gain legal recognition as a woman one has to undergo several months of hormonal therapy. Recognition of masculinity requires undergoing chest surgery as well. In this case, one could say that Poland is strictly divided into West (Wrocław), where trans men are not forced to undergo any surgeries, and East (Warsaw) where mastectomy is often required before the court process can begin. Mastectomy is labeled as a condition for receiving the relevant documents needed for the lawsuit. The procedure is not covered by the national health care plan. Neither are any surgeries related to gender recognition.

Can you afford your human rights?

This creates a situation where the gatekeeping system functions as a control mechanism not only on a medical but also on an economic level and causes individuals to either abandon the process, or to exist in a legal void, avoiding any social situations where the use of documentation is involved. Others, determined to find money for their surgeries, are excluded from the same economic opportunities as the non-trans population. In addition, transgender people are quite frequently discriminated against in the labor market and in the workplace, which makes it difficult to find a profession that would match one’s knowledge and experience.

The Polish gatekeeping system also extends to the court process itself. Going through a long and unpleasant diagnostic process does not have to mean one would be “granted a permission” for changing their gender marker. Because of the fact that a person’s parents are involved in the court process, the procedure can be irrationally prolonged, especially when parents do not accept their child’s decision. Giving the fact that most persons who undergo gender recognition are legally adults (usually over the age of 21), current measures do not comply with recent transgender human rights standards.

Since the Polish court system does not educate its judges on the subject of gender recognition, the court hears out both of the sides and (usually) calls an expert witness (another gatekeeping step), who is expected to check whether the first diagnosis was carried out accordingly. As a result, this process can take up to several years, another reason there is a great need to change those practices and to minimise the influence of third parties. This also includes abolishing any medical interventions as a prerequisite, including hormone therapy.

One positive factor is that changing one’s gender marker is not linked to any sterilisation procedures. However, this kind of situation was possible because of the general attitude towards sterilisation in Polish law. Article 156 of the Polish Criminal Code strictly forbids any interference with a person’s procreation abilities, unless it is because of important health reasons (and transsexuality is not among one of them, even though it is viewed as a disorder). Violations can draw a prison sentence of up to 10 years. Needless to say, the system does not recognize nor encourage transgender parenthood.

The wording used in the law not only bans sterilization, but also creates a broad space for interpretation of what one considers “procreation ability”, which affects the question of mandatory chest surgery for trans men. As a result, a vicious circle is created in which a person is required to undergo a mastectomy, but some health care providers refuse to carry out such an operation because of the fear of legal consequences. This situation drastically limits the offer of medical help to transgender people and creates a corruption-friendly environment.

The debate on new law

It would seem that the new law cannot ignore the issue of medicalisation, since Polish health care providers and policy makers still mainly view the issue from this perspective. If the situation is to be changed as soon as possible, medical society cannot be pushed away from the issue. There is, however, a possibility to establish new diagnostic regulations which would aim to confirm a person’s identity or the need (which is a broader concept than identity) to be socially and legally accepted as a person of a different gender. Diagnosis, however, is still a process of evaluation in which a person is expected to open themselves up to a complete stranger and are often stripped of their dignity.

In 2011 and early 2012, Polish transgender activists discussed  how to minimise the  influence of the medical sector on transgender identities and expressions. The process has shown that the issue of gender recognition in Poland is still a dilemma between what is possible to achieve and a gender utopia: enactment of regulations which embrace transgender, intersex and gender non-conforming diversity.

A gender utopia is a system where gender recognition is possible after a statement of interest, without any diagnosis or medical intervention. In such a utopia, gender recognition would be  independent from cultural traditions. Finally, in this utopia, gender disappears as a value or legal concept, and where a person’s decision on their identity is not questioned. Gender non-conforming diversity is manifested in expressions, identities, and ideas on one’s body projection. This is why the Gender Accordance Act contains a preamble touching on the subject of such basic human rights as dignity, freedom, physical integrity, modern knowledge on gender identity, and the evolution of international human rights standards.

The proposal focuses on identity as a base for gender recognition, which could be viewed as troubling since postmodernity is engraved with instability. Experiences seem to become more relevant than identities themselves. In this case, however, the concept of gender identity is seen as a way to get as far away from pathologisation as possible. The proposal states that a person willing to change their gender marker needs to present a statement on their gender identity (which is labeled as “different from their legal gender”, not “opposite”) and a confirmation of this statement from a psychiatrist or sexologist.

The document also forbids any medical intervention in the process, including hormone therapy, as a prerequisite for gender recognition. It also prohibits any normalising genital surgeries on infants, babies and children, which so far has never been addressed by the Polish law and has been also noted as an active medical practice. It is important to note that the law never mentions words related to transgender nor intersex phenomenona, which – along with the already described concept of gender identity – hopefully brings Poland closer to getting rid of the gender identity disorder diagnosis.

The above mentioned propositions on legal changes constitute gender identity as the main point and reason for the possibility of legal change. For some, it may be a step back. For Poland, it would be a real transgender revolution.

Wiktor Dynarski

Wiktor Dynarski

is a PhD student at Warsaw University Institute of Applied Social Sciences and a trans*activist. Ze works for the Polish trans*organization Trans-Fuzja and has been a member of Transgender Europe's Steering Committee since late 2010, elected co-chair in 2011.