The European Court of Human Rights (ECHR) has in effect ruled that everyone has the right to choose their gender in prisons, says Ordo Iuris, a conservative legal think tank in Poland.

In July this year, the ECtHR ruled that Poland had violated a male prisoner’s right to personal life because the prison where he was serving his sentence did not provide him access to female hormones.

Filip Bator of Ordo Iuris argued that the ECHR has now in essence ruled that everyone has the right to „change their gender”. „Thanks to ECHR jurisprudence, the vast majority of European countries recognise ‘gender’ as a form of personal identity that anyone can choose for themselves,” Bator told Brussels Signal.

In his view this means that „anyone can demand access to medical services that enable someone to identify as the opposite sex, and also means the legal recognition by the state of ‘gender reassignment’ „. „What’s new is the extension of this right to prisoners, who can now expect to be granted access to at the very least hormone therapy while serving their prison sentence,” Bator stressed.

“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” .

The Polish convict was sentenced to 11 years in prison for burglary in 2013 and began identifying as a woman while serving the sentence.

Her mental health deteriorated in 2018 and she had herself castrated. After hospitalisation, she is described as having assaulted a prison officer and was subsequently classified as a dangerous prisoner.

The individual demanded to be recognised as a woman and asked to be given female hormones. This was eventually carried out, despite one doctor’s doubts, and gender treatment continued for the next two years.

In 2020, the prisoner was transferred to another prison, where the medical staff had a different opinion about her hormone treatment. Staff at the new facility argued that gender dysphoria had not been diagnosed and that continuing hormone therapy would increase the prisoner’s risk of cancer. Gender dysphoria is a condition that causes distress or discomfort when a person’s gender identity does not match their birth sex.

The prisoner’s lawyer lodged a complaint with ECHR, accusing Poland of violating his client’s right to privacy. The detainee’s legal team demanded €50 000 in damages and the resumption of hormone therapy. The Strasbourg court issued a temporary injunction to restart the therapy.

In July this year, ECHR ruled six to one that Poland had violated the prisoner’s human rights and awarded €8,000 in damages.

In its majority opinion, the court ruled that the right to respect for private life includes „the right to the protection of one’s physical and social identity” and that „the freedom to self-determine one’s gender identity” is also a right. The ECHR rejected the Polish government’s arguments that the prison institution was motivated by concern for the prisoner’s health.