To change your official gender in Poland you have to sue your parents, causing trauma for trans people

By Anna-Gmiterek-Zabłocka, Radio TOK FM

Marek Urbaniak, a lawyer, is a transgender man, a fact that his documents now recognise. But the path to make that happen was a long and bumpy one.

In Poland, the only way to change your legally recognised gender is to sue your parents. Even as an adult. And in Marek’s case, as in many others, his parents were opposed, making the process much harder.

The court case lasted almost three years. “It was a very stressful, but also humiliating and dehumanising experience,” he tells Notes from Poland.

He made his decision while undergoing testosterone therapy and shortly before having chest masculinisation surgery. He had had enough of what he encountered every day.

“I’d show my ID card and no one would believe that it was my document and not that of some woman,” Marek explains.

“Because it was obvious for them that there was a man standing in front of them, but the documents showed a woman’s details. I was constantly having to explain myself, but still often they didn’t listen when I said I was a trans person.”

Marek Urbaniak (photo: Marta Czajkowska)

Marek frequently felt discriminated against when officials or doctors had doubts over his identity. His experiences with his bank were the most upsetting.

“I was practically unable to use the bank’s helpline services. When I called, I was told that a female client was registered, and the bank call centre employee heard my masculine voice and thought it was attempted fraud. Visiting the branch in person didn’t help either.”

Poland’s gender recognition procedure is difficult in all cases, but even more so for trans people who – as in Marek’s case – don’t have supportive parents. They often refuse to allow their darling “Kasia” to become “Piotr”, and do what they can to prevent it.

“That makes things much more complicated,” says Marek. “A parent can submit various evidentiary motions, for example asking for additional witnesses to be heard or further medical documentation to be presented. And that prolongs the whole procedure.”.

A law on gender recognition is needed

The Polish courts which hear such lawsuits operate on an ad hoc basis as there are no clear laws showing how to treat the issue.

That confusion looked set to be resolved in 2015 under Poland’s previous government, when parliament passed a bill creating a separate court procedure for gender recognition. That would have put an end to the process of trans people having to sue their own parents to be officially recognised for who they are.

However, in October of that year, the newly elected conservative president Andrzej Duda vetoed the bill – the first time he had used that executive power. Soon after, the national-conservative Law and Justice (PiS) party – which has led campaigns against what it calls “gender ideology” – came to power, ending any possibility of the legislation returning.

“There is currently no provision in Polish law saying what the registered gender recognition procedure should look like – it is not directly regulated anywhere,” explains Paweł Knut, a solicitor who helps transgender people navigate the process.

“But there are transgender people for whom this gender recognition is extremely important As a result, by means of court rulings, a procedure has formed that is used for it. It’s actually the Supreme Court – in a few of its rulings – that thought up what the procedure should look like.”

A transgender person wishing to have their gender recognised must file a lawsuit under article 189 of the Code of Civil Procedure, which concerns “action to determine the existence of a legal relationship”.

“The logic of this law is that any of us who needs to may go to court to determine their gender,” explains Knut. “But in such a procedure there must be two parties to the dispute. That’s why it’s necessary to sue one’s own parents.”

If the parents are accepting, the court case generally ends quite quickly, although there are exceptions. But when they do not accept their child’s gender identity things get tough. The process can take a long time and be difficult for their son or daughter to go through.

Even if a person’s parents are no longer alive, the same procedure still needs to be navigated. In such cases, the court appoints someone to represent the parents.

“Usually the court, appoints just one who represents the interests of both of the deceased parents,” explains Knut. However, he adds that there have been cases in which two representatives were selected – one for each parent.

In general with gender recognition cases, “much depends on the specific judge and how they run the procedure,” says Marek Urbaniak, who also notes that “sometimes the state prosecutor might take an interest in the case”, which can complicate things further.

“If it’s a teenager applying for recognition of gender, a court officer is also appointed to represent their interests before the court,” he adds.

Knut says that the procedure is surprising for many people, and can be very painful. “Sometimes we have families who are ‘on the same side’ and work together. These are parents who are in a strange position because they go to the court with their child, have the same legal interest, want what’s best for the child, but have to sit on the other side of the courtroom.”

But, the solicitor adds, there are also completely different situations when there is conflict and misunderstanding in the family and the transgender person is at their mercy or whim. “I regularly have such situations. And then the court procedure, unfortunately, leads to even bigger antagonisms in the family.”

“Without that, though, the transgender person doesn’t have a chance of the decent life they dream of, with documents matching their gender identity,” Knut explains.

The experience of Max and his family

“The gender recognition procedure in Poland is humiliating and inhuman,” Ewelina, the mother of Max (not his real name), an 18-year-old transgender person, tells Notes from Poland. Her son has completed it, although he waited over two years just for the first hearing date.

Fortunately, the process then went smoothly, because his parents are supportive. The hearing took only 15 minutes, and the judgement was passed in the first session.

“We had a judge who in the hearing immediately addressed my son using appropriate, male pronouns, and not those of the sex that was then still recorded in his documents. That was very important,” says Ewelina.

She adds that the only person questioned before the court was her son:

“The court had various questions: for example, since when has he felt a boy, is it invariable, how does he function at school – in keeping with his perceived gender? But also questions like does my son have mental illnesses, which has nothing to do with gender recognition. Or about whether he’s planning in future to have any operations or start a family. What can a teenager answer in that kind of situation? He got out of it by saying that he didn’t know yet.”

Ewelina explains that she wanted to resolve the issue before her son turned 18 so that, as an adult, he would not have to explain to a doctor or to traffic police why he was showing documents with a woman’s details.

As someone involved in helping other parents of trans children, she has heard many shocking court stories. Many parents do not support their children, she says, which makes the procedure a battle that can last for years.

Questions that should not be asked

Some questions asked in court have nothing to do with the gender recognition procedure. Judges have been known to ask about the plaintiff’s first menstruation or whom they have had sexual relations with.

“That’s completely ridiculous,” argues Ewelina. “We’re talking about a process concerning gender identity, not sexual orientation. Of course, some people answer, ‘That’s irrelevant.’ But others will explain themselves to the court. Which for them is humiliating and discriminating.”

“Putting it simply, some questions asked in court can knock even a fighter and a very brave person off their stride. Everything really depends on the specific judge and their human approach.”

Ewelina says she even knows of an expert witness telling a child to undress to certify the details in the documents the child presented. “That is absolutely unimaginable and scandalous. But it happens,” she says.

“Of course there’s no need for a transgender person to undress before an expert witness who is supposed to give a statement to the court. On this occasion, the child didn’t undress, but as a result, they didn’t receive the witness’s statement.”

Another route to avoid humiliation

Some transgender people opt for a different, administrative route – officially changing their forename and/or surname but not their registered gender.

“In that situation, you need to submit an application to any registry office in Poland,” explains Knut, the lawyer. “Everything takes place based on the name changes act of 2008.”

One reason for doing this is when people use a different first name or surname from those in their documents. In the case of transgender people, the chosen name might be one that sounds identical for representatives of various genders – often foreign-sounding names such as Sasza, Max or Alex.

Under Poland’s current conservative government, there is no prospect of legal changes to make it easier for trans people to have their gender recognised. Indeed, Jarosław Kaczyński, the chairman of the ruling party, declared last year that called the idea that people can declare their own gender is “madness”.

There are parliamentary elections this autumn, at which it is possible a more liberal opposition coalition could come to power. That would likely be led by Civic Platform (PO), the centrist party under whose rule the 2015 gender recognition legislation was passed by parliament. It would also probably include The Left (Lewica), which has pledged to introduce such legal changes.

However, with Duda’s term in office set to last until 2025, it remains possible that any such legislation would, as in 2015, be met with a presidential veto – leaving transgender people in Poland facing the continued challenges and humiliation of having to sue their parents in order for the state to recognise them as who they really are.

Main image credit: Maciek Skowronek / Agencja Wyborcza.pl. Text translated by Ben Koschalka

Anna Gmiterek-Zabłocka is a journalist at Radio TOK FM, specialising in social issues including migration, domestic violence, and challenges faced by people with disabilities. She won the Grand Press Award for 2010 among other prizes.