T.H. v The Czech Republic

There is nothing new here. It is not lawful for a State to require surgery before recognising a gender identity. Nor do women's rights and women's identities get a mention.

The European court ruled that it was a breach of the applicant’s article 8 rights to require him to have surgery before changing the gender on his national identity card. This is nothing new. The European Court has previously ruled that making surgery a pre-requisite to change a ‘gender identity’ was impermissible as it would often involve sterilisation.

For unknown reasons this case has been seized upon by anti women activists as an attack on the Supreme Court judgment in the For Women Scotland case, apparently on the erroneous view that the SC had declared trans people do not have rights under article 8 of the ECHR ( the right to a private and family life). The SC of course held no such thing; rather that ‘sex’ should be interpreted to mean ‘biological sex’ in any statute where to do otherwise would lead to absurd and unworkable outcomes.

But the case itself is interesting for two reasons, what it says about the impact of medical/surgical transition and for the continuing failure to notice or care that women have rights also, including the right to single sex female spaces.

Silence about the rights of women

The Czech Republic itself did its best to argue for a wide margin of appreciation in matters regarding sex/gender, asserting that Czech society valued ‘binary social gender’ which was ‘derived from biological gender’ and that any change to this should be made by the legislature, not via European case law in case further social tensions were provoked. However, these were broad arguments, not linked specifically to women’s vulnerability.

The phrase ‘women’s rights’ does not appear anywhere in the judgment. It simply does not occur to anyone that that an important response to ‘self ID’ in terms of gender identity must be to weigh the potential for harm to another vulnerable group; women.

The Court noted that there were reasons for a wide margin of appreciation in sensitive cases i.e. member States should be allowed greater leeway. (para 44)

With regard to transgender people, there were, in its view, weighty reasons to keep a wide margin of appreciation, such as the principle of the inalienability of civil status, the reliability and consistency of civil status records, legal certainty, the persisting relevance of the biological and binary concept of sex, and the protection of a child’s interests in a family in which one of the parents turned out to be transgender.

Women’s rights to safety and dignity do not appear on this list. Nor did the Court allow a wide margin of appreciation to the issue of enforced surgery. The entire focus is on the positive obligation of member states under article 8 to provide ‘quick, transparent and accessible procedures’ for changing a registered sex/gender marker. The right to ‘gender identity and personal development is a fundamental aspect of the right to respect for private life’ (para 53). Again, nothing at all about the rights of women to safety and dignity, surely also ‘fundamental aspects’ of their right to a private life.

Rejection of the need for surgical intervention.

Why women’s rights don’t get a mention, is explained by the European Court’s approach to surgical transition. Asserting that ‘passing’ isn’t the goal if it involves ‘mutilating’ surgery, as the ECtHR does, fuels women’s arguments that they cannot be expected to welcome obviously male bodied people into single sex female spaces. So just don’t mention women’s rights.

Further, this position is immediately in conflict with those activists who claim that medical/surgical intervention is the ‘gold standard’, even for children and that medical/surgical intervention should be available as a ‘right’.

It is interesting to track this issue through the judgment. It is part of the cluster of incoherencies around ‘trans identities’ with which advocates of trans rights must grapple - what extent is ‘passing’ the key to enforcing ‘trans rights’? The approach of many since the SC judgment appears to be to highlight the cruel injustice done to those trans people who ‘pass’, and have done for many years suddenly having to ‘out themselves’. ‘Passing’ is offered as the obvious ‘middle ground’; if a man takes hormones and grows breasts or lines a surgical cavity in his pelvis with the skin of his inverted penis, why of course he is a woman!

But making ‘passing’ a key to unlock status for trans identified people, is an especially difficult place for men. Going through male puberty means they inevitably will rarely ‘pass’ as female, even with invasive surgery. But denying puberty to male children means significant intervention at a very early age, to which they cannot consent and for which there is currently no evidence base for its efficacy.

BUT denying people surgery they claim they need to pass is also seen as a violation of their human rights, even when these people are 13 year old girls seeking a double mastectomy. This is particularly prevalent in the US which appears to adopt an exclusively ‘patient satisfaction model’ of medical intervention. What the patient wants the patient gets, even if she is a traumatised child. The doctor becomes nothing more than a puppet technician. (Happily the recent closure of Dr Olson-Kennedy’s clinic in the US may bring an end to this particular approach to children, but adults remain vulnerable).

In my view, these circles cannot be squared and reveal the central incoherence of any argument that ‘gender identity’ is the same as, or more important than, sex or can survive as an organising category without significant and probably unlawful coercion of others. A claimed ‘identity’ which exists only insofar as others ‘affirm’ it, is immediately vulnerable to the the many who will not accept that it is their role to scaffold this delusion.

The Judgment in T.H. referred to a 2015 resolution of the Parliamentary Assembly of the Council of Europe (para 27) which called on Member States to abolish compulsory medical treatment as well as mental health diagnosis as any necessary legal requirement to recognise a gender identity. It should be ‘self ID’ all the way. This was reiterated by the then Commissioner for Human Rights in 2023 and 2024. Her 2024 statement is particularly interesting, noting that surgical procedures (para 29)

… coerce trans people into an “impossible dilemma” of choosing between their right to bodily integrity and their right to [legal gender recognition]. They may also result in a person forfeiting their capacity to have children and to found a family, as further discussed in the section on family life. These interventions are imposed under circumstances, which are incompatible with the guarantee of free and informed consent to medical treatment.

There is recognition, quite sensibly that such surgery is serious and could be harmful to health. It requires free and informed consent.

The judgment quotes favourably the report of the UN Special Rapporteur on Torture in February 2013 (para 31)

hormone therapy and genital-normalizing surgeries under the guise of so called ‘reparative therapies’ ... are rarely medically necessary, can cause scarring, loss of sexual sensation, pain, incontinence and lifelong depression and have also been criticized as being unscientific, potentially harmful and contributing to stigma.

Well. Quite. It’s very interesting to note that this finding was apparently ignored by WPATH and others in their rush to establish medical and surgical intervention as the ‘gold standard’ intervention for children and young adults.

Commentary

We are in this mess largely because of ‘no debate’ which has allowed these incoherent and contradictory notions of ‘what is trans’ to swirl about in chaotic confusion. If surgery is not the end goal then you are asserting a pure ‘self ID’ model - and what then is the impact on women? What is the ‘test’ to distinguish between the ‘truly trans’ man, who has experienced gender dysphoria for as long as he can remember, and the predatory or paraphiliac male, who wants access to female spaces to fulfil his need for sexual pleasure?

The European Court deal with this by the simple expedient of ignoring women altogether. An amusing coda to all this is that T.H actually didn’t want to be a woman. He identified as non binary, but Czech law doesn’t offer any kind of non binary registration and the European Court wasn’t going to make them, focusing instead on a notional ‘female’ identity for T. H.

The battle ground is thus clearly set for the civil rights of ‘non binary’ people to be argued before the court, to force everyone else into compliance with a structure of ‘identity’ that others find vaguely irritating or wearisome and which should be of no more interest or importance than your favourite colour or star sign.

I was told all of this mess has been deliberately created to distract us from what is really going on in the world. Every day, I lean closer to accepting this as true. We surely cannot have created this mess without some malign and external machinations. We surely cannot be this stupid.