October 18, 2024
Deekshitha Ganesan and Richard Köhler
On 11 July 2024, the European Court of Human Rights (the Court) delivered an important decision in the case of W.W. v. Poland, finding that Polish prison authorities’ denial of access to hormone replacement therapy to a trans woman who was imprisoned violated Article 8 of the European Convention on Human Rights (ECHR).
This decision is hugely important for trans people in prison, who often have little to no access to trans-specific healthcare. It unequivocally recognises for the first time the significance of this life-saving treatment for trans people and the obligation of States to ensure it is available. It is also a voice of reason amidst otherwise heated public debate that overly focuses on trans people in prison when discussing gender self-determination. The underlying facts of the case paint a realistic picture of what trans women often have to suffer in prison.
The applicant W.W. is a trans woman from Poland and has been legally recognised as a woman since 2023, when a regional court granted her request for legal gender recognition in March 2023.
In 2018, while serving a sentence for various crimes, W.W. conducted a bilateral orchiectomy on herself, motivated by discomfort and distress resulting from differences between her gender identity and sex characteristics. Half a year after this incident, and after consulting a series of medical professionals, W.W. received a recommendation that she should start hormone replacement therapy immediately since the lack of this treatment posed a serious risk to her health. As of 2019, W.W. was allowed to undergo the therapy in the prisons she then served her sentence. During the following one and half years of treatment, her physical and emotional health improved considerably. She covered the cost of this herself.
In 2020, W.W. was transferred to Siedlce Prison where she applied for permission to be sent medication from outside the prison. Her request was refused on the same day and shortly after was put on hold on the basis that administration of hormones required thorough psychological-psychiatric and endocrinological opinions. For this, a series of medical consultations would have been necessary, but prison authorities delayed them. In the meantime, W.W. continued the hormone replacement therapy while her supply of medication lasted. She also produced other expert opinions, including from an endocrinologist, who corroborated the original recommendation that hormones were essential medication in her situation. Despite this medical evidence, prison authorities did not allow access to new hormone medication.
During this period of delay, she ran out of hormone medication and approached the Court seeking relief. As an interim measure, the Court ordered that she be administered hormones prescribed by her endocrinologists at her own expense, which prison authorities complied with within 24 hours.
TGEU submitted a third-party intervention in the case, bringing the attention of the Court to relevant case law on the rights of trans people under Articles 3, 8 and 14 of the Convention. TGEU emphasised the vulnerability of trans people in prison and specifically highlighted the unique healthcare issues faced by trans people, including the importance of hormone replacement therapy for the physical and mental wellbeing of trans people. The intervention also provided a comparative perspective with trans people in custody in the United States. In addition to TGEU, the Polish Ombudsman and the Helsinki Foundation intervened in the case.
The applicant argued that refusing her access to hormone replacement therapy was a violation of Article 3 (right against inhuman and degrading treatment) and Article 8 (right to private and family life) of the ECHR. Additionally, the applicant also called on the Court to decide on violations of Articles 2, 13 and 14. However, the Court ultimately chose to focus only on the violation of Article 8.
The Polish government alleged that W.W. does not have victim status, arguing that she could have appealed the initial decision to halt the treatment under domestic law and ask for post-sentence compensation. The Polish Ombudsman submitted in its intervention that there were no effective remedies available, particularly in cases involving health-decisions that are based on a doctor’s opinion, since these are rarely overturned by judges.
The Court sided with the Ombudsman’s opinion. It opened its analysis under Article 8 by reiterating that self-determination of gender and gender identity are both covered by Article 8, which protects, as a matter of private life, aspects of one’s identity and personal autonomy. The Court reiterated the two elements of protection and respect under Article 8: protection against arbitrary interference by the state and the positive obligations on the state to respect the individual’s private life.
The Court distinguished this case from other cases on medical treatment for trans people which involved positive obligations and particularly reimbursement of costs (Van Kück v. Germany, Schlumpf v. Switzerland). It noted that the relevant aspect here is the denial of care which W.W. had been receiving for almost two years, interfering with the applicant’s right to private life. The Court observed that the Polish prison authorities did not justify their refusal on any reasonable legal grounds nor did they set out why the treatment might have been detrimental to the applicant’s health.
Reconfirming that gender identity is an essential element of self-determination of identity, the Court noted that access to hormone treatment touched on W.W.’s ability to define her gender. It also reiterated the numerous difficult steps involved in transitioning, whether medically or socially, which goes to show that the decisions to transition are not taken arbitrarily.
Significantly, the Court set out clearly that hormone replacement therapy was beneficial for the applicant’s physical and mental health and that the doctors who prescribed it considered it to be necessary and urgent for the applicant to receive care. The burden placed on the applicant to prove once again to the Siedlce prison authorities that the treatment was necessary by undergoing additional consultations was disproportionate in this case, echoing Van Kück v. Germany.
The Court also reiterated the particular vulnerability of the applicant as an imprisoned transgender person who is in the process of transitioning.
Considering these facts, the Court held that the authorities failed to strike a fair balance between the competing interests at stake, including the protection of the applicant’s health and her interest in continuing hormone replacement therapy in line with her self-determined gender identity.
Judge Wojtyczek delivered a dissenting opinion and found that there was no violation of Article 8. He questioned the Court’s medical expertise and was especially concerned that the Court issued interim measures with medical detail. He confirmed his consistent opposition to an evolutionary interpretation of the Convention, particularly when it comes to sexual and gender minorities (Fedotova v. Russia, Y.Y. v. Turkey, Hämäläinen v. Finland). His concerns mostly focused on the vulnerability of societal norms not those of the applicant.
This case is the first decision of the Court specifically on the right of trans people in prison to access hormones. It follows a growing set of standards on the rights of trans people in prison, including the Council of Europe Committee of Ministers (CoM) recommending member states in their CM Rec (2010)/5 to “ensure the safety and dignity of all persons in prison” and to take measures “to adequately protect and respect the gender identity of transgender persons”. The global key standards for the treatment of prisoners, “Nelson Mandela Rules” (2015) equally require in Rule 7 that the self-perceived gender identity of those who are imprisoned is respected. Further, the most recent General Report of the Council of Europe’s Committee for the Prevention of Torture (CPT) dedicated a special section to trans people in prison and noted that all trans people must be able to access hormone treatment and surgery if they wish, at the same cost as the rest of the trans community in the country.
W.W. had to make considerable efforts over a prolonged period for the prison authorities to act on her plea. This stands in contrast to the positive obligation of states to take specific measures ensuring the health and well-being of trans people in prison as a particularly vulnerable group.
This obligation is not “new”. The CPT has remarked already in 1993 on the need to provide healthcare at par with the outside community (CPT/Inf (93) 12) and in 2015 for trans-specific healthcare (CPT/Inf (2015). If accessing trans-specific healthcare is already a struggle for a trans person outside as documented by TGEU research, the case illustrates the additional barriers one has to overcome while being imprisoned. In at least 11 EU Member States for which we have information, trans people in prison are either excluded from or have to wait considerably longer to access trans-specific healthcare. This is often because decisions on the importance or necessity of trans-specific healthcare are based on general principles and depend on the understanding and attitude of the prison administration and staff, as the Helsinki Foundation noted in their third-party intervention.
The Court reminds us that inaction can also constitute a negative interference with a prisoner’s rights. However, despite the positive outcome in the case, the Court does not go far enough in its decision to recognise the full range of rights-violations experienced by W.W. at the hands of the Polish prison authorities.
Despite empathy for the applicant and her situation, it is striking that the Court refused to consider the issues raised under Article 3 on the prohibition of torture and degrading, inhumane treatment. Treatment may reach the threshold of Article 3 when it causes severe physical or mental suffering, is intentionally inflicted, or is of such a nature that it undermines human dignity (Tyrer v. the United Kingdom). W.W’s suffering spanned years and likely did not begin with the severe self-harm. It was followed by the refusal of prison authorities to administer hormone replacement treatment, let alone provide her with psychological support. Additionally, the applicant had to plead, appeal, and even finance out-of-pocket costs for her life-saving medication. One is left to wonder what more a person must endure due to the inaction of health and prison authorities for the Court to recognise an Article 3 violation. The Court’s decision confirms a narrow view that applications concerning medical or legal transition only fall within the remit of Article 8. In cases dealing with the validity of forced sterilisation as a precondition for legal gender recognition, the Court has, with the exception of A.P. Garcon and Nicot v. France, equally refused to consider Article 3 complaints.
In W.W., the Court continued its narrow path on Article 8 as the one-size-fits-all response to trans-specific complaints before it. The applicant argues that the withdrawal of the hormone replacement treatment was “to deny her gender identity and right to self-determination, and to debate and humiliate her”. While the Court confirms the specific vulnerability of trans inmates, it fails to examine transphobia as a motive for the omission of prison authorities to provide for the necessary relief. Indeed, if the concern of the prison authorities was to ensure the health of the applicant, they would have at least made available psychological support while they were considering the applicant’s request. Although the absence of such support was argued by the applicant, the Court did not take notice of it in the judgment.
The applicant credibly rejected the prison authorities’ claim that they made efforts to arrange for such an examination, for a lack of evidence of action. The medical unit’s decision to halt the treatment was made swiftly, but reversing that decision, even after receiving the expert statement, did not occur at the same pace. But when the Court intervened the medication was provided promptly, suggesting a lack of intent. The prison authorities might not even be aware of their own biassed motive, nevertheless the impact on the applicant was severe.
The decision to prohibit access to hormone replacement treatment despite evidence that it was essential for W.W., the negative effects of its denial on the applicant’s physical and mental health, and the lack of any psychological support for the applicant during this period, demanded an analysis of whether it constituted discrimination under Article 14. In other cases involving gender identity, such as A.M. v. Russia, the Court did consider Article 14 and identified transphobia as the centrepiece and underlying motivation of the actions by the authorities thus finding a violation of Article 8 in conjunction with Article 14.
The inability of the Court to see the systemic nature of transphobia in W.W. v. Poland is further confirmed by the Court not requiring the establishment of a legal or policy framework to prevent similar violations in the future.
Although the Court reiterates that the right to self-determine one’s gender identity is protected by Article 8 based on the principle of autonomy, it engages in a rather narrow and outdated view analysis of gender self-determination in practice. The Court emphasised medical opinions, a ‘gender dysphoria’ diagnosis, and the amount and level of painful interventions and personal commitment (also see Christine Goodwin v. The United Kingdom), to conclude that there is nothing arbitrary or capricious in medical or legal transitioning.
The world has evolved in the 20 years since Goodwin. Today, 12 countries in Europe, some of them for a decade, have practically implemented the right to gender self-determination, decoupling it from medicine and stories of suffering, with swift administrative procedures for changing one’s name and gender marker. All the while, the Court holds onto “gender reassignment” as a lead motive of transitioning and to a narrative of suffering as the true proof for a trans person. Future cases will hopefully give the Court the occasion to evolve in their understanding of gender identity. We hope that the Court will then also perceive more clearly on transphobia and issues of systemic discrimination.
The judgement in W.W. v. Poland underscores the ongoing challenges faced by transgender people in prison, particularly regarding access to necessary medical treatment and the recognition of their rights. The judgement is a sobering reminder that in contrast to public opinion on gender self-determination, trans people in prison and in particular trans women, are more often the victim than the perpetrator in closed settings. At the same time, the Court notably refrained from addressing the broader implications of transphobia and the systemic barriers that contribute to the suffering of trans people who are imprisoned. The decision highlights a critical need for a more comprehensive legal framework that not only safeguards the rights of this vulnerable prison population but also actively prevents future violations. As societal understanding of gender identity continues to evolve, it is imperative for the Court to adapt its interpretations and ensure that the rights of all individuals, particularly those in marginalised positions, are fully recognised and protected. Future cases may provide an opportunity for the Court to reassess its approach and move towards a more inclusive and equitable understanding of gender identity and the rights of transgender persons.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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1 Comment
Law is law, the penalty for breaking the law is loss of freedom, healthcare should not be at stake. She should serve her time but still access hormone therapy or any other medication required