Information Agency: The civilian Chamber of the ultimate Court issued a resolution, which fundamentally alters the current sex change process in civilian position records. So far, sex change in papers has been done through a judicial process, where grounds for specified a decision had to be demonstrated. Now the situation has changed.
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Gender change without trial
Today, alternatively of conventional procedural proceedings, sex change is expected to happen in non-trial mode. As a consequence, this means that the process is greatly facilitated and that the suspect does not request to be present. For the same reasons, changes will be criticized as well as praised.
From a legal perspective, there's quite a few right. specified processes were usually rather artificial processes, carried out in a sense only for formalities. In practice, disputes in this kind of litigation may not have been.
No suspect
However, the real large change is that as a result, we no longer have a suspect party, which was usually the parents or the spouse.
The examination of the ultimate Court showed that the spouse is interested, as sex change would lead to a single sex marriage. At the same time, the ultimate Court considered that the result of the procedure for the change in the metric sex of the kid does not in fact concern the rights of parents and does not belong to the ellipse of persons afraid in the case.
Supreme Court, Resolution Communication
“In settling the legal issue presented by the lawyer General, the ultimate Court had in head the apparent discrepancy in the case law of the courts as regards the ellipse of entities that should participate in the proceedings initiated in order to get a change in the entry in the birth certificate concerning sex, and the fact that in the strategy of Polish law there are no rules that straight regulate the situation of the individual whose metrical gender, recorded in the birth certificate, is different from that of the sex felt.
In the case-law and the case-law conducted by the courts of the model, the case for the change of sex marks was conducted on the basis of Article 189 of the Code, and on the defendant's side the parents of the individual who requested the entry in her certificate of birth of the other sex to the 1 indicated in the application for determination. In any proceedings the defendants were besides the spouse and children of the plaintiff. Each final judgement obtained was the basis for an additional mention in the plaintiff's birth certificate to the sex designation. However, the procedural procedure in specified cases from the outset raised serious doubts as to the organization to the defendant’s proceedings, the implementation of the rule of adversariality and the nature of the action and judgement determining the sex, issued pursuant to Article 189 kp.c.
The ultimate Court, after having carried out a comprehensive analysis of the question of the ellipse of entities who should be active in the re-designation of sex in the birth certificate of a transsexual individual and in the appropriate course of judicial proceedings in which specified a request should be recognised, took the view that specified cases should not be dealt with in a procedural procedure but in a non-trial procedure by analogy with Article 36 of the civilian position Act.
The ultimate Court took note of the fact that, in the current legal state, the sex of man is an component of civilian position (Article 2(1) in Article 49(2)(1)(a). – Law on civilian position files, which aim to bring about the correct content of the civilian position act (to correct, to supplement, to cancel and to find the content), at the judicial phase take place in non-trial mode.
The plan and mechanisms of the non-process mode take greater account of the circumstances of the public interest sphere, and besides minimize doubts regarding the issue of procedural legitimacy.
The choice of non-process procedure allows the usage of its highly flexible structure. First of all, it removes the request to guarantee bilateral proceedings – a non-trial procedure may be conducted with the participation of only 1 participant, if the rights of only 1 entity concern the result of the procedure. There is so no request to make a ‘artificial’ defendant, as is the case in the process of changing the sex designation under Article 189 k.c. As a substance of fact, the process is based on the thought of a legal dispute, whereas the process of sex change is not the consequence of a dispute between 2 entities with opposing interests in which there is simply a request for an independent entity to resolve the dispute in the form of a court. While the judgement under Article 189 k.p.c. is effective only between the parties, and so between the plaintiff and its closest, the decision on the substance of the non-trial procedure under the civilian evidence law has, in principle, the effectiveness of erga omnes.
The individual nature of cases for sex change in the birth certificate means that the prosecutor and the head of the civilian position office referred to in Article 36 p.a.s.c. must be excluded from the list of persons authorised to make specified a request.
The result of the procedure for amending the sex designation in the birth certificate concerns the applicant's individual rights. This is the nature of the case in favour of a narrow knowing of the legal interest in specified cases as possible. However, if the applicant remains married, his spouse belongs to those curious in the result of the proceedings (Article 510(1) of the Code). The existing matrimony of a transsexual individual – if the proposal were taken into account – would become a single-sex matrimony in specified a situation, which would be contrary to Article 18 of the Polish Constitution, which protects the identity of matrimony as a relation between man and woman.
According to the ultimate Court, however, there are no compelling reasons to believe that the result of the procedure for the change of the metric sex of a transsexual individual concerns the rights of its parents and so cannot be assumed to belong to the ellipse of persons afraid in the case of the change of the sex designation within the meaning of Article 510(1) of the Code. Similarly, the issue of participation in sex change matters of the applicant should be assessed. The parenting relation is not dependent on the sex designation of the parent whose change does not consequence in the termination of relations between the parent and the child, the rights and obligations of those persons towards each another shall not be altered."
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Information Agency, AI Life AXY origin Supreme Court 24.03.2025
