“Breakthrough,” says the lawyer. Gender change will be possible without surgery

The operation will no longer be a condition for official sex change, the Constitutional Court decided on Tuesday. According to him, the requirement to undergo surgery, which is contained in the current form of the law on official sex change, is contrary to human dignity.

“According to the Constitutional Court, the legal requirements for the surgical transformation of the genitals and the disabling of the reproductive function are in direct conflict with the fundamental right of trans people to protect their bodily integrity and personal autonomy, primarily because they violate their human dignity,” the court said.

The case of a person who sought gender reassignment but did not want to undergo surgery sparked the debate about trans people’s rights. The authorities did not allow her to do so, so the person turned to the Constitutional Court. He responded by repealing two controversial provisions in the law, which require surgery and castration for gender reassignment. The change will take effect from mid-2025.

Minister of Justice Pavel Blažek (ODS) also responded to the verdict, who stated on the X social network that the ministry has been preparing an amendment to the law for two years, but so far there has been no political agreement to approve it. But the ruling is precisely what opens the door to new legislation. “The wording of the law has been processed by the Ministry of Justice for two years, but there was no political agreement on whether and when to present the draft law to the government. The Constitutional Court gave a clear instruction with its decision,” wrote Blažek.

Ondřej Preuss, a constitutional lawyer from the Faculty of Law of the Charles University, agrees that the decision of the Constitutional Court will give the process of equalizing the rights of trans people the necessary impetus.

“This decision is such a catalyst, which means that the process will be accelerated. But it is probably not the case that without the decision of the Constitutional Court, the change would have no chance of success at all. The only question is whether it would really drag on for many years,” he says in an interview for Seznam Zprávy.

According to him, it is not yet possible to say what exactly this change will look like. The new legislation is in charge of the Parliament, not the court. “It probably won’t look like I come to the office, report a gender change, they’ll put it in the file and it’ll be done. The process will certainly be complicated, I think the main change is that the necessity of surgery will disappear. The rest is up to the Parliament,” he explains.

It is certainly a very important and ground-breaking decision, also considering the fact that the Constitutional Court actually dealt with that question, albeit not in the same spirit, already in 2021. But there, on the contrary, it came to the opposite conclusion and did not actually intervene then. So I think it’s a crucial decision.

Why did it happen now?

The point is that there was some very specific basis. It involved a specific petitioner who believed that the rule requiring him to undergo surgery was unconstitutional. This subsequently reached the Constitutional Court. Simply put, it was not some abstract pressure caused by some political force and therefore turned to the Constitutional Court to solve the matter. He was a real individual.

With that decision, the judges are actually saying that they don’t want to be activist and political and they don’t want to excessively interfere in the activities of the Parliament, and that is precisely why the time for adjustment is so long. This is actually a procedure that we can now follow in other states in recent years, when the courts intervene quite strongly, but leave it to the decision of the parliament itself.

How politicians reacted to the discovery

In response to this finding, Minister Blažek announced that there has been an amendment to that law for two years, but there has been no political consensus on it yet. Do you know about it?

It has been suggested repeatedly. This decision is such a catalyst, which means that the process will be accelerated. But it is probably not the case that the change would have no chance of success without this finding of the Constitutional Court. The only question is whether it would not really drag on for many years.

I think it is probably a true thesis that sooner or later it would have been more likely to do so even without the intervention, but on the other hand, the intervention certainly catalyzes it and gives some greater certainty to those affected.

The decision drew strong reactions, both negative and positive. Do you think the debate will settle down?

Personally, I believe that the debate will calm down the most when the rights are fully established and gradually there will be no reason for any sharper exchanges of opinion. In this context, many Western countries experienced this, where the debate was heated, but it also started decades earlier than here.

There was no democracy here for a long time and a lot of these cultural things were actually decided from the top down and not from the bottom up – and society had no room to discuss it. I am not surprised by the sharp reactions, but I think that society will get used to it over time. Experience from abroad suggests this.

Judges Josef Fiala and Milan Hulmák objected to the change. How do you perceive their arguments?

Judge Fiala mainly referred to the fact that the Constitutional Court had already dealt with something similar and, in his opinion, there is no reason to deviate from the then decision. He also emphasized that these issues should primarily be resolved by the Parliament, which has legitimacy from the people – and the court should not be the one to decide these issues by itself. But the judges themselves agreed to this and that is why there is a long deadline, which gives the Parliament space to properly discuss it and make a sovereign decision.

But it’s really not that simple. Of course, I also have sympathy for the thesis that it is ultimately the parliament that should determine the basic rules in a democratic state. However, the debate about where the court’s power ends is one of the biggest we have in constitutional law.

The debate about trans rights is a big topic, and as a lawyer you also encounter it. How do you perceive her?

It is, of course, a big legal dispute. Now, on top of that, it was a story of a specific person who has to deal with that situation in some way, which gives it the human aspect. We cannot simply separate the value discussion, which goes beyond the law to some extent. After all, the Constitutional Court decided it based on the argument of human dignity.

However, this is a concept that can be interpreted in different ways and it is therefore not always clear in advance what guarantees the person will have. Therefore, the discussion cannot only be legal, but always value-based.

What exactly will this adjustment mean in practical terms?

This will be the subject of discussion in Parliament, which will amend the law. It cannot be determined by the court. But I don’t think it will be easy at all. It probably won’t look like I come to the office, report a gender change, they’ll write it in the filing cabinet and it’ll be done. The process will certainly be complicated, I think the main change is that the necessity of surgery will disappear. The rest is up to Parliament.

Here, you need to be inspired by how it is handled abroad. When it comes to sports, for example, especially in the top competitions, it is still based on the physical characteristics of a person. However, those changes will most likely happen, they don’t happen overnight. It is always a longer process, but we can follow it and do not have to invent everything ourselves.

Do you think there will be further significant shifts?

I would say yes. As I said at the beginning, I believe there will be shifts as long as there is some social pressure. And he will be here until the rights are settled.