Interesting Article – Repost: Sarah Ouředníčková, A Door Opened, But Not Fully (Verfassungsblog 17.6.2025) [ECtHR, T.H. v. the Czech Republic – sterilisation as a precondition for legal gender recognition]

On 12 June 2025, the European Court of Human Rights issued a judgment in T.H. v. the Czech Republic, a case brought by a non-binary person, finding a violation of Article 8 of the Convention for requiring sterilisation as a precondition for legal gender recognition. Legally, the Court walked a familiar path, citing its established case law and reasserting well-known principles. But this case marked an unspoken first: it involved a non-binary applicant. While the applicant’s identity was acknowledged in passing, the Court quickly reframed the claim in binary terms, referred to the applicant using masculine pronouns, and declined to engage with the broader questions of inhuman and degrading treatment or discrimination. The result is thus a mixed outcome: the judgment opens a legal door but offers little warmth to those standing outside the traditional gender binary.

Who’s knocking on Strasbourg’s door?

T.H. is a non-binary person, assigned male at birth, but having struggled considerably with their gender identity from their early age (for a more detailed introduction see our previous post on the underlying decision by the Czech Constitutional Court (CCC)). As the ECtHR noted, T.H. has undergone “hormonal treatment (to reduce testosterone levels) and some body aesthetic procedures” (§ 7) but has never undertaken a sex reassignment surgery. Therefore, the Czech authorities register and treat T.H. as a man. That is reflected inter alia in T.H.’s personal numerical code, also known as “birth number”, which has the male form.

This explains the procedural strategy: T.H. had approached Czech administrative authorities with a request to change the birth number to a “neutral” (which, admittedly, does not exist in Czechia) or at least a “female” form so that this unique identifier would not present T.H. as a male person and would not require a repeated coming-out in everyday situations where T.H.’s documents did not match T.H.’s appearance. And while the CCC presented the case as a technical litigation “about birth numbers”, this case really concerns much deeper issues, including dignity and recognition of persons belonging to minorities.

What did the Court say?

The ECtHR found unanimously (and unsurprisingly) that the Czech requirement of undergoing surgery and sterilisation as a condition for legal gender recognition violates the right to respect for private life under Article 8. The Court reaffirmed that such a requirement imposes on certain persons “an insoluble dilemma”: it forces them to choose between preserving their physical integrity and gaining legal recognition of their gender identity (§ 58; see also X and Y v. Romania, § 165). The judges considered that while States enjoy a margin of appreciation in this morally sensitive area, that margin narrows considerably when fundamental aspects of personal identity and autonomy are at stake. However, the Court declined to examine the applicant’s complaints under Articles 3 and 14, holding that the violation of Article 8 sufficed. It also refused to award any compensation for non-pecuniary harm, stating that the finding of a violation was itself sufficient. Only a partial reimbursement of legal costs was granted.

Misgendering as a fundamental form of disrespect

In a case centred on recognition, language is paramount. The Court acknowledges that T.H. identifies as non-binary (§ 6) and has requested to have their male unique identifier changed to, preferably, a neutral one or, at least, a female one (§ 7). However, the Court proceeds to use masculine pronouns throughout the judgment. It justifies this by stating that

“on the date of lodging of the application, the applicant was regarded for civil-law purposes as belonging to the male sex. For that reason, the masculine form is used in referring to him; however, this cannot be construed as excluding him from the gender with which he identifies.” (§ 4)

This misstep undermines the very dignity the Court ought to uphold. Even as the judgment affirms a right, its tone betrays a missed opportunity for respect.

First, pronouns are a crucial way of identifying with a gender for anybody and of affirming their gender identity. The use of preferred pronouns, including by judges, has a fundamental importance for the recognition particularly of trans and non-binary persons. Scholars such as Rosalind Dixon have emphasised the importance of the language used by judges for a sense of dignity and respect on the part of applicants. Similarly, Sarah Ganty has shown how the language and narratives used by judges – as (meta)narrators – can become part of the cultural processes reproducing (or tackling) inequalities. At the same time, the use of preferred pronouns does not prejudge the merits of the claim as to whether one’s gender should be recognised, as noted by dissenting Judge Šimáčková in the first Transgender Judgment of the CCC. In other words, by using the applicants’ preferred pronouns, nothing is lost but much is won in terms of respect.

Secondly, the justification of using pronouns based on the legal sex/gender of the person at the time of lodging the application is inconsistent with the Court’s usual approach of addressing trans applicants in accordance with their gender identity. It is true that the Court has sometimes used the pronouns according to the officially registered sex/gender including in the key case of A. P., Garçon and Nicot v. France which also dealt with the refusal to recognise gender without undergoing gender reassignment surgery and which the applicant in T.H. relied on. However, the Court usually uses the preferred pronouns, including in its other key cases such as Goodwin v. UK, as well as more recent cases dealing with the refusal to recognise gender without undergoing surgery such as the 2021 case of X and Y v. Romania or the 2022 case of A .D. and Others v. Georgia. The Court’s refusal to use the applicant’s pronouns in T.H. is thus a surprising and unwelcome setback.

Finally, the Court’s refusal to use the applicant’s preferred pronouns is even more surprising and disrespectful given that the Court used feminine pronouns when first communicating the case. Interestingly, even the Government consistently used feminine pronouns in its communication with other institutions, which makes the Court’s choice absurd. The Government continued to use feminine pronouns even in its press release about the judgment. In a rare reversal of roles, the respondent State has thus appeared more attuned to the lived identity of the applicant than the Court itself.

Vital avenues left unexplored

Focusing exclusively on Article 8 while ignoring potential violations of Articles 3 and 14 significantly narrows the judgment’s reach and we consider it a missed opportunity. Article 14, in particular, could have grounded a stronger, intersectional judgment addressing gender-based discrimination.

The Court noted that while the applicant relied on more provisions, it was up to the Court – as the “master of the characterisation” – to decide under which Article(s) a complaint is to be examined (§ 46). It argued that since the applicant had not been subjected to any medical intervention against their will or any interference with their reproductive rights as well as “the nature of the proceedings brought by him before the domestic authorities and to the approach taken by it in similar cases”, referring to A.P., Garçon and Nicot and X and Y v. Romania, the complaint falls to be examined solely under Article 8. However, in Garçon, the situation was different in that only one of the three applicants had raised Article 3 (see dissenting opinion in Garçon, § 3 and 21). Moreover, Article 3 was still relied upon by the Court in its reasoning. The Court established that mandatory gender reassignment surgery affects “an individual’s physical integrity, which is protected by Article 3” as well as Article 8 (§ 127) and results in “making the full exercise of their right to respect for their private life under Article 8 of the Convention conditional on their relinquishing full exercise of their right to respect for their physical integrity as protected by that provision and also by Article 3 of the Convention” (§ 131).

We do understand that the applicant in T.H. had not been subjected to forced sterilisation. However, the very fact that access to legal gender recognition remained contingent upon such a procedure arguably created a form of coercive pressure. In its Guide on Article 3, the Court states

“that a threat of torture can also amount to torture, as the nature of torture covers both physical pain and mental suffering. In particular, the fear of physical torture itself may in certain circumstances constitute mental torture” (p. 8).

It is worth asking whether a person must actually undergo inhuman or degrading treatment in order for the Court to assess the situation under Article 3, if such a condition is not applied regarding torture under the same article. Instead, the Court should have fully examined the complaint under Article 3, given the severity of the required medical intervention including involuntary sterilisation; an intervention that is far from hypothetical for persons such as T.H. By refusing to engage Article 3, the Court missed the chance to affirm what the UN Special Rapporteur and others have made clear: forcing trans persons to choose between recognition and sterilisation is not just privacy infringement; it is inhumane.

Furthermore, the Court held there is no need to examine the complaint under Article 14 since it had found a violation under Article 8 (§ 62). This is the Court’s typical approach of sidelining Article 14 as a Cinderella provision and shying away from developing an equality and anti-discrimination jurisprudence. However, explicitly condemning discrimination can have powerful implications for oppressed and marginalised individuals. As in other trans rights cases, the Court opted for the safer terrain of individual privacy and self-determination, rather than confronting the structural discrimination that Article 14 is designed to expose. On the contrary, we have witnessed a mirrored attitude in Semenya v. Switzerland, a key Grand Chamber case about a famous South African professional athlete who had been forced to hormonally decrease her natural testosterone levels in order to compete in the female category. In Semenya v. Switzerland, the Court found a violation of Article 14 in connection with Article 8 while concluding that there was no need to examine separately the complaints under Article 8 alone.

A violation without remedy…

The refusal to grant compensation – despite acknowledging a violation – risks signalling that the harm endured is not materially recognised. This undermines the applicant’s lived experience and may discourage future litigation from marginalised groups. A violation without remedy rings hollow, especially for those already on the legal margins. Symbols matter.

…and with no legislative reform in sight

In a different case decided last spring, the CCC concluded that the sterilisation requirement was unconstitutional, quashed the respective legislative provisions with effect from 1 July 2025 and set a clear deadline for legislative reform by the end of June 2025. A draft law was circulated but has been criticised for introducing burdensome and medically unnecessary conditions, such as mandatory psychiatric assessments, hormone therapy, and a year-long waiting period. Even more troubling is the political inertia surrounding the bill. The Ministries of Justice, Health, and the Interior have each shifted responsibility to the others, resulting in a bureaucratic stalemate.

Thus, no legislation has been adopted – and with just two weeks remaining, none is realistically expected before the deadline expires. That means that although the sterilisation requirement will cease to apply as of July 2025 (as a consequence of the abovementioned CCC ruling), the legal framework for gender recognition will remain ambiguous and unregulated at statutory level. Ministerial guidelines might be issued at the last minute, but such measures lack the democratic legitimacy of legislation and can be easily altered to reflect shifts in political will. This looming legal vacuum – a situation the ECtHR was aware of (§ 26) – raises serious concerns for legal certainty.

A partial step forward

The judgment in T.H. represents a partial but important step in the ongoing development of the ECtHR’s jurisprudence on legal gender recognition. It reaffirms that requiring sterilisation as a condition for the recognition of one’s gender identity is incompatible with Article 8. It also emphasises the importance of judicial dialogue (§ 59), inviting national constitutional courts to share the responsibility for European human rights protection. However, the Court’s reasoning remains narrowly framed. By misgendering the applicant, reframing the case within a binary framework, and declining to engage with the potential implications under Articles 3 and 14, the Court missed an opportunity to address what the case was really about.

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