October 14, 2025
by Sam Chollet
In T.H. v. Czech Republic, the European Court of Human Rights (ECtHR) reiterated that the requirement for trans* people to undergo genital surgery to have their gender legally recognised violates the right to private life. But this apparent victory for trans* rights represents a drawback for non-binary trans* people.
The case concerned T.H., a non-binary Czech national. Assigned male at birth, T.H. had been following hormonal therapy for several years and underwent surgical operations. From 2012 onwards, they had been seeking to obtain legal gender recognition (LGR) through the change of their birth number. In the Czech Republic, the sex assigned at birth is reflected through a numeric code, allowing for two options —male or female. In the absence of a neutral option, T.H. eventually sought to, ‘at the very least’ (para. 7), have their numeric code written in the female form.
However, according to Czech legislation, requests to change the ‘sex/gender marker’ are not only strictly binary, they are also limited to those having undergone ‘irreversible surgery’, i.e. genital operations precluding any reproductive function. Since they had not —and did not wish to— undergo such procedures, T.H.’s applications were dismissed. National courts relied on the importance of binary sexes/genders, which they elevated to the rank of ‘values’ (para. 12). The Czech Supreme Administrative Court especially outlined that ‘any departure from a strictly binary social gender […] was undesirable, contrary to “common sense” and disruptive to the basic building blocks of social order’ (para. 14). Furthermore, courts discredited the concept of gender identity by distinguishing between ‘objective’, ‘medical’ sex and ‘subjective’ gender. As a result of T.H. challenging the legislation before the Constitutional Court, the latter annulled the provision at stake from June 30, 2025 onwards, leaving it to the legislature to establish a new framework. However, the legislature still refused to change the applicant’s sex/gender marker.
Before the ECtHR, T.H. argued that the surgery requirement violated their rights to respect for private and family life, to be free from torture or inhuman and degrading treatment, and not to be discriminated against —in breach of Articles 3, 8, and 14 of the Convention. The Czech Government maintained that society’s ‘strictly binary and objective understanding of gender’ worked not only against loosening LGR requirements but also against the recognition of non-binary identities. They outlined the legitimacy of the goals pursued to ensure ‘legal certainty and the preservation of social order’ and invoked the protection of ‘the fundamental natural attributes of family and parenthood’ as a justification to the requirement (para. 40).
The position held by the ECtHR in T.H. v. Czech Republic is ambivalent. On the one hand, confirming its 2017 decision in A.P., Garçon and Nicot v. France, it found the sterilisation requirement to be incompatible with Article 8. On the other hand —but still in line with its previous decisions— it did not examine claims based on Articles 3 and 14. All in all, this decision keeps non-binary identities out of Strasbourg.
In its reasoning, the Court relied on an established line of case-law. The 2002 Goodwin case had established gender identity as a fundamental aspect of private life under Article 8 and required States to provide legal recognition of ‘post-operative’ trans persons. The A.P. decision considered that making gender recognition conditional on sterilisation or leading to sterilisation violated Article 8. The Court insisted on the ‘impossible dilemma’ trans* people had to face for having to choose between their right to respect for private life and their right to physical integrity. In X and Y v. Romania, it recognised States’ obligation to provide ‘quick, transparent and accessible’ frameworks for LGR. T.H. was therefore the occasion to confirm that LGR procedures also concern number markers, and that surgical requirements are, by principle, incompatible with Article 8.
In the T.H. decision, the Court confirmed that the right to gender identity is ‘a fundamental aspect of private life’ (para. 53). Considering the absence of a European consensus and the ‘sensitive moral or ethical issues’ at play, this was key in granting the State only a narrow margin of appreciation. The Court also recalled that the sterilisation requirement made trans people confront an ‘insoluble dilemma’ (para. 57), resulting in a breach of Article 8.
However, the Court’s finding was limited to the period until 30 June 2025 —when the impugned provisions are due to lapse following the Constitutional Court ruling. Moreover, considering that ‘the finding of a violation constitutes sufficient just satisfaction’ (para. 66), the Court did not grant T.H. with a financial remedy. This obviously minimises the psychological suffering and social hardship stemming from years of misrecognition and repeated involuntary disclosures of identity. In general, many aspects of the decision indicate the Court’s willingness to allow States not to provide a procedure based on self-determination, despite the growing recommendations (one might say the ‘trend’) from international and non-governmental organisations.
Among these aspects, the fact that the examination of the complaint relating to Article 3 was set aside is a blatant way of giving States some leeway.
Invoking the jura novit curia principle, according to which judges are not bound by the characterisation of the facts given by the parties, the Court considered that the case fell to be examined ‘solely under Article 8’ (para. 46) and dismissed the applicant’s claim that the sterilisation requirement was a form of ill-treatment.
To justify its position, the Court relied on the fact that, contrary to other cases, such as forced sterilisation of women, T.H.’s reproductive rights were not interfered with. However, this is not very convincing, since what is at stake is precisely the sterilisation induced by the genital surgery. The Court could have acknowledged that, in this context, sterilisation is effectively imposed and not consented to, leading to an interference with physical integrity. Moreover, the requirement contributes to stigma and reinforces social exclusion, amplifying the degrading character of the measure. This sidelining of Article 3 complaints, now common in trans* rights cases (see, e.g., W.W. v. Poland) prevents a debate on the impacts of LGR requirements on trans* people’s dignity.
Moreover, confining LGR claims to Article 8 leads to keeping trans* people’s recognition in the private sphere, thereby ‘closeting’ their identities —and giving credit to the Government’s arguments that ‘psychological’ experience of gender is not a matter of State’s interest, while ‘objective’ sex would be.
Furthermore, because of the Court’s persistent reliance on Article 8, States benefit from a loose interpretation possibility, since the right to LGR remains qualified and exceptions can be accommodated. Many countries therefore still require a form of psychiatric diagnosis to modify one’s sex/gender marker or have access to surgery. In T.H., the Court outlined for the first time that the World Health Organisation has stopped referring to gender identity related health as a form of mental illness (para. 50). This could have signalled the Court’s openness to the evolving state of knowledge on trans* identities, but no conclusion was drawn from it. On the contrary, by not examining Article 3, the Court missed an opportunity to establish a bright-line rule against coercive medicalisation. The legitimacy of LGR requirements was even enhanced, as the Court considered that the need to ensure ‘legal certainty’ justifies ‘putting in place stringent procedures aimed, in particular, at verifying the underlying motivation for requests to change legal identity’ (para. 56). Consequently, after T.H., States remain free to impose heavy medical gatekeeping that go against self-determination.
When the Czech Constitutional Court annulled the legislative provision requiring sterilisation, it mentioned that the same objectives could be achieved by less severe means —such as ‘requiring opinions from several independent specialist sexologists confirming the irreversibility of the individual’s conviction’ (para. 24). Therefore, after June 30, the legal vacuum will most likely give rise to the requirement of some kind of psychological diagnosis. This effectively makes LGR more difficult for non-binary people, whose identity is most likely not going to be recognised in the diagnoses, given the belief in the existence of two mutually exclusive sexes/genders. Therefore, even without the sterilisation requirement, LGR will remain inaccessible for non-binary people.
T.H. also considered that the situation they faced amounted to a breach of Article 14 combined with Articles 3 and 8. They argued that the authorities’ refusal to recognise their official gender led them to constantly disclose their trans* identity and was constitutive of (indirect) discrimination.
However, this claim was barely addressed by the Court. Given the conclusion of a violation of Article 8, judges considered it ‘unnecessary to examine whether there ha[d] been a violation […] of Article 14’ (para. 62). This conclusion is far from surprising, given the ECtHR’s general reluctance to investigate Article 14 claims. The most common explanation for this attitude resides in the ‘procedural economy’ argument, according to which, given its scarce resources, the Court cannot expand on all claims as long as one violation is found. However, this practice is even more regrettable when particularly vulnerable minorities are concerned.
When trans* rights are at stake, examination of discrimination claims are especially rare, with only one case ever leading to the finding of a violation. One reason for this outcome is the fact that, in the past, the Court has refused to find in cisgender people a suitable comparator to trans* people. The omission of the discrimination claim therefore leads to two regrettable consequences. First, relying on Article 14 would have led to acknowledging the similarity of trans* people and cisgender people’s situations, participating in the normalisation of trans* identities. In this context, the absolute lack of recognition of non-binary people could have been highlighted.
Second, omitting Article 14 reinforces the impression that the problem lies only in the sterilisation requirement, whereas the deeper issue is the exclusionary nature of the legal framework itself. By not engaging in the discrimination claim, the Court avoided confronting the consequences of a binary model which never reflects non-binary people’s identities and forces them to repeatedly disclose personal information against their will. In this sense, the absence of a discrimination analysis obscures the systemic dimension of the treatment to which non-binary people are subjected. Thus, the T.H. decision can be read as confirming the Court’s belief in two mutually exclusive sexes/genders, and marginalises people who step outside this binary framework.
When assessing the scope of the case, the Court reframed it as concerning the claim to change the applicant’s registered sex from male to female, instead of their wish to change their birth number to a neutral form (para. 47). In support of this finding, the Court referred to the applicant’s procedures at the national level, which eventually led them to ask for a female birth number. The Court also mentioned T.H.’s transition journey, considering that the hormonal treatment they followed corresponded to a change from male to female —the question remains as what would correspond to a hormonal change from male to non-binary… Therefore, what resulted from the national legal framework and lack of other remedies was used by the ECtHR to single out the situation of non-binary people within the trans* community.
The lack of recognition of non-binary people was further symbolised by the Court’s wording. Throughout the entire judgment, the Court referred to the applicant using masculine pronouns, despite its acknowledgment of T.H. identifying ‘as “intergender”’ (para. 13). Given the Court’s general respect of trans* people’s identities in other cases, but also considering its previous use of feminine pronouns in the communication of the same case, this sounds paradoxical. Moreover, it strikes as a form of particular disrespect to the applicant: as others have argued, language is of paramount importance when it comes to legal gender recognition. The Court’s attitude cannot be regarded as a coincidence or a mistake —when read in the light of the decision as a whole, it only reinforces the conclusion that trans* people’s rights are limited, and that they certainly do not extend outside of the binary.
Finally, the ruling confirms the Court’s narrow conception of what constitutes a ‘legitimate’ trans* person. According to its narrative, the only ‘valid’ trans* people are those who have been aware of their identity for a long time (the applicant knew ‘from an early age’), have experienced difficulties (they ‘struggled’ with their gender identity) and have undergone some form of medical transition —of which surgery is still considered the culmination (‘he refused to undergo irreversible sex-reassignment surgery’ but ‘did, however, undergo hormonal treatment’, para. 6). Reproducing this narrative reinforces exclusionary criteria of legitimacy, leaving non-binary experiences largely invisible.
In its first non-binary case, Y v. France, the Court had been very clear about the lack of positive obligation to recognise a neutral sex/gender marker. But in T.H., instead of taking the chance to assess the developments since Y v. France, the Court refused to even consider the existence of such an obligation.
Besides, several aspects of the ruling point to the willingness of the Court to mitigate the consequences of its own findings. By legitimating States’ concerns for ‘legal certainty’, and by acknowledging that the case raises ‘sensitive or moral issues’ (without specifying which ones), the Court frames trans* people as a threat to States’ interests, a threat which only seems to apply stronger to non-binary people. Moreover, the Court’s reference to the Hämäläinen v. Finland case about trans* people’s right to marry and to the A.H. and Others and O.H. and G.H. v. Germany cases about their parental rights only reinforces the feeling that the ECtHR’s case law on trans* rights merely stagnates. Indeed, by pointing out the ‘different situations’ (para. 59) raised by these cases, the Court signals that the T.H. decision can in no way be considered a step further and doesn’t signal a potential evolution on other topics whatsoever.
Finally, the decision also symbolises the hardening of positions on gender issues. Although the A.P. ruling was handed down nearly ten years ago, 12 States Parties to the Convention still require sterilisation before granting LGR (para. 43). To explain the lack of implementation, one Czech court deemed the A.P. judgment ‘surprising’ and relied on the ‘persuasive’ dissenting opinion accompanying it to rule out its application in the case of T.H. (para. 12). Similarly, a conservative third-party intervener questioned the conclusion reached in A.P., suggesting that the decision merely banned sterilisation without questioning ‘surgery only altering appearance’ (para. 45).
An explicit ruling extending a right to legal recognition to non-binary persons would have clarified divergent interpretations. While the Court’s will to rely on judicial dialogue to implement change can only be welcomed, clear guidelines inclusive of all identities are needed for the national legislatures to ensure genuine equality and effective protection of gender diversity.
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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