Transgender Human Rights in Poland. Speech at #WPATH2016 symposium in Amsterdam
Dreams really do come true. At least sometimes. Ever since I’ve heard of the World Professional Association for Transgender Health and its commitment to research trans health and develop guidelines around trans-specific health needs, I wanted to be a part of that world. At least for a brief moment. And there it was. Last weekend, I gave a short, 15 minute speech on the human rights situation of transgender people in Poland regarding legal and medical transition as well as aspects of general healthcare.
All data used have been published in Trans-Fuzja’s 2015 report on access to healthcare for trans people in Poland. You can find the English version here and the Polish here. A larger publication summing up recent trans-led research is in the works for 2017. Do enjoy this small presentation.
Before I begin my presention, I would like to express thath I am honored to speak at such an important event as the WPATH symposium. And that I can briefly present the problematic aspect of transgender human rights in Poland.
In my current capacities I am employed as the Executive Director of Trans-Fuzja Foundation and also serve as the President of its Management Board. I am also a PhD candidate at Warsaw University Intitute of Applied Social Sciences.
Trans-Fuzja is an organization whose vision is the absolute respect of transgender human rights in Poland, social equality for trans people and lack of discrimination in any area of life, especially regarding gender identity and gender expression. And it is so far the only trans organization in Poland, which has managed to exist for almost a decade and remains active.
In my presentation, I will try to convey some aspects of trans realities in Poland and similarly to Boris, I would like to focus on three aspects that are important both to our work and this event’s focus
Trans people’s existence in the Polish legal system and its influence on different areas of life The question of trans identities and right to legal transition and their systemic linkage to overcomplicated diagnostic procedures Discrimination and experience of violence in access to healthcare as reported in Trans-Fuzja’s 2015 report „Transgender and healthcare in Poland”.
1. Invisibility before the law
In all honesty, it is extremely difficult to talk about actual „existence” of trans people before the Polish law, as there is no mention neither of gender identiy nor gender expression in any regulation. What exists, however is one single regulation from 2011 where the phrase „sex change” is used and concerns the possibility of issuing a new diploma after legal transition.
Transgender people are not specifically protected by Polish law from any type of maltreatment, whether it is discrimination, violence (understood as broadly as possible) or different types of injustice. If it wasn’t for international law, specifically the European Union Gender Re-cast Directive, there would not have been any possibilities to argue for right to non-discrimination in the workplace for example.
What the EU regulation has changed for trans rights in this instance is that gender discrimination can be understood as a concept going beyond a typically cisnormative approach and include (to quote) „discrimination arising from the gender reassignment of a person”.
Still, this – in the Polish context – concerns only those who have successfully commenced their medical transition (a pre-requisitte to further, legal transition) and have managed to get as far as receiving confirmation from a healthcare provider (typically a sexologist) that their gender identity differs, in fact, from the gender assigned at birth and hence they can be labeled „transgender” or – to put it strictlier - „transsexual”, as this is the diagnosis one aims for when accessing transition-related healthcare and which will then be instrumental in starting a complicated and often tiring legal process of recognizing one’s gender identity.
2. Right to identity, legal and medical transition
Gender recognition – the process of having one’s gender identity recognized by the state and reflected in state-issued documents – is executed with the help of a judical procedure that in itself is not at all connected to transgender issues, but has been interpreted by the Polish High Court as the best solution in order to (to quote) “establish that a transsexual’s sex has been changed”, which in reality means (and has been confirmed by one of the court of appeals) that a person cannot change their gender marker, and therefore other personal data such as name and first name, without being diagnosed as transsexual.
This is referred to as the “assessment suit” in which an individual confronts (effectively sues) their parents and asks of the court to deem whether they are of the gender they identify with. Upon receipment of full medical documentation of one’s case, a lawsuit can commence. Needless to say, it is a tiring and problematic process, as every gender recognition case is treated as stand-alone and not a routine process.
What it means for transgender people is not just the fact that they will confront their parents in court, but also that their diagnosis will be evaluated by another sexologist (as an expert witness) and hearings will be organized. If there is no objection coming from the family, one can be almost certain (although not entirely) that they will be granted legal recognition. However, if there is objection, one can also be sure, that not only will the parents testify against both the claimant and medical evaluation, they will also work towards providing additional evidence and testimonies in order to disprove their child’s gender identity. And since there is no deadline for the court to issue a decision in an “assessment suit”, this process can take a minimum of 6 months up to even a few years.
Throughout the years, Trans-Fuzja has helped many individuals with their legal struggle against their parents. All of which were adults between the ages of 20 and 60 years old. Our longest case so far took 6 years due to the active opposition coming from both parents and ex-wife of the claimant. The claimant was in her forties, when she contacted our organization.
There have been several additions to this judical practice, which seem to complicate the process even more. A 2013 High Court decision made it necessary for underage children to be sued as well, as they have been identified as also having a legal interest in their parent’s legal gender. This reasoning is most likely linked to the fact that a child’s birth certificate will not be affected by the court’s decision. A parent who transitions will not have their new first or last name reflected in their children’s documents and therefore will be forever subjected to disclose the fact that they have once legally transitioned.
Privacy protection is not, however, a problem only for children, as a person who legally transitions will not have a new birth certificate issued, but instead have their existing birth certificate ammended, which poses danger of having their previous data exposed and misused.
Although in many countries a transsexual diagnosis (F64.0 according to ICD-10) is regarded as a standard procedure before accessing legal recognition, as is the case of Poland, this particular process involves a wide range of diagnostic measures and is usually handed by a sexologists who is regarded as the primary provider and assisted by additional psychological and psychiatric assessment in order to “rule out any other disorders”. This process involves writing autobiographies, exposing one’s sexual and relationship history, as well as providing mental health professionals with photos in order to “prove” one’s commitment to transition.
What needs to be underlined, however, is the fact that there is no requirement for sterilization before legal recognition, which comes not from a specific focus on right to physical integrity and family life, but from the overall ban on sterilization procedures, which go hand in hand with Poland’s strict law on abortion.
Trans-Fuzja’s research and counseling work with trans individuals revealed that typically a person accessing medical transition services is also subjected to:
gynaecological or prostate exam
as well as a real-life test, involving compliance with healthcare provider’s expectations on gender expression
As one can clearly see, a transsexual diagnosis in Poland is therefore highly medicalized and can be described as a gatekeeping procedure, as it is also aimed to produce evidence for a legal court case, which – as previously mentioned – does not have to end with a ruling confirming gender recognition. In its form it also discourages non-binary and non-heterosexual trans people from seeking medical and/or legal transition.
3. Discrimination and violence in access to healthcare
Transgender people in Poland experience a number of set backs when accessing proper healthcare. Most of transition-related services are not financed by the state under any circumstances. 2015 marked a small breakthrough, when the Ministry of Health introduced 30% co-financing on some, yet not all, hormonal medicine. Still, surgeries have to be privately financed and more than often their price exceeds an average salary by a few times.
In 2015, Trans-Fuzja Foundation published the results of its „Transgender and healthcare in Poland” research, which focused on two important aspects of access to healthcare for trans people in Poland in the context of experiences between 2009 and 2014.
The research covered a wide range of aspects including:
1. General healthcare 2. Healthcare regarding transition
Healthcare related to court proceedings
Appointments, surgeries related to transition
3. Trans-specific healthcare.
And recorded 101 responses.
In much of the responses it was evident that trans people in Poland experience issues with having their gender identity recognized by medical staff either in the private or the public sector, although the latter sector was more prominent to disregard any statements on chosen names and pronouns.
In general, research responses recorded a more trans-positive approach coming from the private sector.
Here, I would like to show some examples of how lack of sufficient knowledge on transgender issues in the healthcare sector could translate into malpractice and/or discouraging transgender people from seeking appriopriate services, which then fuels more systemic problems like deteoriation of trans population healthcare, lack of data and generally reported mistrust to healthcare providers among trans people, at least on my current country of concern.
As one notes, when it comes to percentage of results, these still constitute a minority, but the diversity of inappriopriate situations is, in my opinion enough, to be calling for a better recognition of trans-specific needs in general healthcare, especially when it comes to education of future and currently practicing healthcare providers.
When asked Did you ever encounter an unpleasant/odd situation during an appointment with a primary healthcare provider more than 22% of the answers were affirmative:
“unpleasant remarks, too informal approach”,
“My GP wanted to look under my underwear”,
“Focusing on the scars on my chest, intrusively asking me on their origin”,
“The physician said that as long as my documents aren’t changed, he will refer to me according to my ID”,
“During the examination, when I informed the physician on my transsexuality and the stress related to undressing, the doctor responded with a brazen, ridiculing tone that I’m overreacting and told me to stop making a scene”
“My physician advised that I should seek an exorcist as a good way to deal with my transsexuality”
When asked “If you used services of any treatment laboratory in the last 5 years, did you experience any unpleasant situations? 5% of the answers were affirmative:
“the lady asked uncomfortable questions”,
“there was an attempt to look under my underwear”,
“They didn’t want to give me my pap smear results, even though I had the test when using my male data”
“commenting on my scars out loud”.
16% of the respondents experienced unpleasant situations when coming into contact with specialist physicians.
“I was referred to using female suffixes even though I wanted to be referred to ask a male”,
“Using the wrong linguistic form even after I corrected them. Another doctor did not give me any treatment opportunities other than making tests that I’ve already taken, and telling me that they can’t help me”,
“The physician was shocked that I want to try a different drug that the one he prescribed”,
“He mocked me when I asked about sex, because a person like that just doesn’t have it”,
“generally unpleasant approach towards the patient and ignoring all the information I had given. The physician instantly knew better”,
“An endocrinologist immediately stated that he does not know what to do with me, so I asked him for a prescription for testosterone which I’d been already taking for years”,
“taking photographs of my genitals”
As one may imagine, it is extremely difficult to paint a whole picture of the human rights situation of trans people in one country, seeing how in the case of Poland there are many points to address and most probably many more to come. And it has always been and still is a difficult topic to work with.
From a systemic point of view, it is currently almost impossible to work for policy change or enactment of new laws, seeing how just less than a year ago a new gender recognition law, which was aimed to end the practice of having third parties involved in this process as well as introduce strict deadlines for court cases, was vetoed by the Polish president. As mentioned numerously by different stakeholders, the current government is also not interested in working on changing the current situation.
What is left to non-governmental organizations is education and possible policy change on lower levels. Hence, when it comes to access to healthcare, Trans-Fuzja and other groups engage with lawyers, human rights organizations and insitutions (such as the Polish Commissioner for Human Rights), health institutions, individual healthcare providers as well as future psychologists, psychiatrists and medical staff in order to influence trans realities of today in hopes that it will also blossom into future policy and legal change.
Audycja “Połączenie” Radia TOK FM, w której razem z dr Dorotą Pudzianowską odpowiadaliśmy na pytania Jakuba Janiszewskiego odnośnie tego, czego właściwie próbuje dokonać Polska na arenie międzynarodowej, jeśli chodzi o sprawy osób LGBTI.