Administrative gender reassignment as a de lege ferenda consideration?

Result code in IS VaVaI

<a href="https://www.isvavai.cz/riv?ss=detail&h=RIV%2F00216224%3A14220%2F22%3A00140113" target="_blank" >RIV/00216224:14220/22:00140113 - isvavai.cz</a>

Result on the web

<a href="https://www.pravnyobzor.sk/index.php?id=po32022-kotkova-uredni-zmena-pohlavi-jako-uvaha-delege-ferenda" target="_blank" >https://www.pravnyobzor.sk/index.php?id=po32022-kotkova-uredni-zmena-pohlavi-jako-uvaha-delege-ferenda</a>

DOI - Digital Object Identifier

<a href="http://dx.doi.org/10.31577/pravnyobzor.2022.3.05" target="_blank" >10.31577/pravnyobzor.2022.3.05</a>

Result language

čeština

Original language name

Úřední změna pohlaví jako úvaha de lege ferenda?

Original language description

Gender reassignment is current but controversial topic. It is often known as a political topic. The issue is that, in addition to law, also affects sociology, biology and medicine. Gender is often perceived as something objective, something that can be determined briefly. In Czech society, as well as in Slovak’s, gender is perceived at the biological level, i.e., it is determined based on external sexual characteristics at birth. According to the prevailing view here, society is made up of only male or female sex. In a situation where a person does not identify with the sex assigned at birth, with effect from 1 January 2014, the Czech legal system enshrines the possibility of changing sex. However, it is necessary to have undergone a surgical procedure that prevents reproductive function. The change of sex is also connected with other legal aspects, e.g., the dissolution of an existing marriage and registered partnership. Although the aim of this article is to reflect on the forthcoming amendment of the provisions of Section 29 of the Civil Code, it is impossible to do so without a closer look at the issue, or defining the key concepts, or outlining a different concept of gender than the purely biological. Since gender reassignment does not only concern person’s suffering from gender identity disorder but the article will also discuss intersex people, for whom it is not possible to determine unambiguously whether they are girls or boys after birth, although this should be done in accordance with Czech legislation. Subsequently, attention will be focused on the evolutionary development of the jurisprudence of the European Court of Human Rights in relation to gender reassignment and the legislation of neighboring countries, more specifically the Austrian and German legislation, which can be seen as a possible foreign inspiration. Since, as will be shown below, the Czech legislation is quite like the Slovak one and because they are very close to each other, both geographically and historically, the issue will be considered through the lens of the relevant Slovak legislation.

Czech name

Úřední změna pohlaví jako úvaha de lege ferenda?

Czech description

Gender reassignment is current but controversial topic. It is often known as a political topic. The issue is that, in addition to law, also affects sociology, biology and medicine. Gender is often perceived as something objective, something that can be determined briefly. In Czech society, as well as in Slovak’s, gender is perceived at the biological level, i.e., it is determined based on external sexual characteristics at birth. According to the prevailing view here, society is made up of only male or female sex. In a situation where a person does not identify with the sex assigned at birth, with effect from 1 January 2014, the Czech legal system enshrines the possibility of changing sex. However, it is necessary to have undergone a surgical procedure that prevents reproductive function. The change of sex is also connected with other legal aspects, e.g., the dissolution of an existing marriage and registered partnership. Although the aim of this article is to reflect on the forthcoming amendment of the provisions of Section 29 of the Civil Code, it is impossible to do so without a closer look at the issue, or defining the key concepts, or outlining a different concept of gender than the purely biological. Since gender reassignment does not only concern person’s suffering from gender identity disorder but the article will also discuss intersex people, for whom it is not possible to determine unambiguously whether they are girls or boys after birth, although this should be done in accordance with Czech legislation. Subsequently, attention will be focused on the evolutionary development of the jurisprudence of the European Court of Human Rights in relation to gender reassignment and the legislation of neighboring countries, more specifically the Austrian and German legislation, which can be seen as a possible foreign inspiration. Since, as will be shown below, the Czech legislation is quite like the Slovak one and because they are very close to each other, both geographically and historically, the issue will be considered through the lens of the relevant Slovak legislation.

Type

J_SC - Article in a specialist periodical, which is included in the SCOPUS database

CEP classification

—

OECD FORD branch

50501 - Law

Project

—

Continuities

I - Institucionalni podpora na dlouhodoby koncepcni rozvoj vyzkumne organizace

Publication year

2022

Confidentiality

S - Úplné a pravdivé údaje o projektu nepodléhají ochraně podle zvláštních právních předpisů

Name of the periodical

Právný obzor

ISSN

0032-6984

e-ISSN

2729-9228

Volume of the periodical

105

Issue of the periodical within the volume

3

Country of publishing house

CZ - CZECH REPUBLIC

Number of pages

22

Pages from-to

246-267

UT code for WoS article

—

EID of the result in the Scopus database

2-s2.0-85208421910