ECtHR: W.W. v Poland 11 July 2024 – Refusal to allow transgender person to continue hormone therapy in prison: violation of Art. 8 ECHR
Legal summary
July 2024
W.W. v. Poland – 31842/20
Judgment 11.7.2024 [Section I]
Article 8
Article 8-1
Respect for private life
Refusal to allow transgender person to continue hormone therapy in prison: violation
Facts – The applicant is a transgender woman who at the time of lodging the application was legally recognised as a male. Her request for legal recognition was granted in 2023. Between 2013 and 2024 she served several terms of imprisonment in male prisons. In June 2018 the applicant was hospitalised after performing a bilateral orchiectomy on herself. Upon the request of the governor of the prison where she was then detained, she was examined by a medical expert who recommended that she pursue hormone replacement therapy associated with gender reassignment. The prison governor allowed the applicant to undergo such treatment.
In May 2020 the applicant was transferred to Siedlce Prison. Her request to that prison’s governor for permission to be sent the necessary medication to continue her treatment was left without examination pending a further opinion of an endocrinologist. The applicant submitted such an opinion which prescribed her hormone therapy. The applicant ran out of medication on 18 July 2020 and her hormone treatment was interrupted as of that date.
On 30 July 2020, under Rule 39 of the Rules of Court, the Court indicated to the respondent Government to “administer the applicant … with the hormones prescribed by her endocrinologist … in doses prescribed, at her own expense, until otherwise decided by an endocrinologist”.
The applicant received the medication on 31 July 2020.
Law – Article 8:
(a) Interference or positive obligation – The applicant had undergone hormone replacement therapy associated with gender reassignment for nearly one and half years in two previous prisons and had been refused such therapy only when she had been transferred to Siedlce Prison. Thus, she had not complained of inaction on the part of the domestic authorities, but rather of the fact that the Siedlce Prison authorities had prevented her from continuing the treatment which she had initially been allowed to undergo. Therefore, the Court approached the case as one involving an interference with the applicant’s right to respect for her private life.
(b) Compliance with Article 8 § 2 – The interference at issue had been “in accordance with the law” and had pursued the legitimate aim of protecting the applicant’s health. The remaining question was thus whether it had been “necessary in a democratic society”.
The prison authorities’ decision, which had concerned access to hormone treatment, had touched upon the applicant’s freedom to define her gender identity, one of the most basic essentials of self-determination. In that regard, the Court also noted the impact of that decision on the applicant’s right to sexual self-determination; it had repeatedly held that given the numerous and painful interventions involved in gender reassignment and the level of commitment and conviction required to achieve a change in social gender role, it could not be suggested that there was anything arbitrary or capricious in the decision taken by a person to undergo such a procedure.
The applicant had been diagnosed with gender dysphoria after she had performed genital self‑mutilation and had been prescribed hormone replacement treatment, which, according to the medical reports, had had beneficial effects on her physical and mental health. The doctors who had prescribed the hormone replacement therapy had considered it to be necessary.
Therefore, the domestic authorities had had strong elements before them indicating that hormone therapy had been an appropriate medical treatment for the applicant’s state of health. That therapy had been provided to her in previous prisons and had had a beneficial effect on her. At Sieldlce Prison the treatment had been interrupted before she could be consulted. The burden that had been placed on the applicant to prove the necessity of the prescribed medical treatment by undergoing an additional consultation with an endocrinologist appeared disproportionate in the circumstances. In any event, the endocrinologist’s opinion she had submitted to the prison authorities confirming the necessity of the hormonal therapy had not resulted in her request being granted.
The Government had not referred to any detrimental effects which the therapy might have had on the applicant’s physical and mental health, nor had they maintained that allowing her to continue the therapy would have caused any technical and financial difficulties for the prison authorities. Indeed, the applicant had borne the cost of the medications herself, thus imposing no additional costs on the State. Although her hormone treatment had been interrupted only for a relatively short period, between 18 July and 31 July 2020, the applicant had submitted that since the beginning of July 2020 she had been taking half of the prescribed dose of medication. Most importantly, she had eventually received the medication, not because of a sudden change of approach on the authorities’ part, but as a consequence of the Court’s indication of interim measures under Rule 39.
Accordingly, the authorities had failed to strike a fair balance between the competing interests at stake, including the protection of the applicant’s health and her interest to continue the hormone therapy associated with gender reassignment. In so concluding, the Court bore in mind the applicant’s particular vulnerability as an imprisoned transgender person undergoing a gender reassignment procedure, which had required enhanced protection from the authorities. The Government’s preliminary objection relating to the applicant’s victim status, which had been joined to the merits, was therefore dismissed.
Conclusion: violation (six votes to one).
Taking into account that the applicant had received the necessary medical treatment since 31 July 2020, the Court decided, unanimously, to lift the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court.
Article 41: EUR 8,000 in respect of non-pecuniary damage.
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 