Sądowa zmiana płci osoby pozostającej w związku małżeńskim

Abstract

Polish law does not sufficiently regulate the issue of gender reassignment by transsexuals, but case law has developed a concept according to which it is possible to change the gender designation on a birth certificate by means of a court ruling. According to the Polish Constitution, marriage is in all cases a union between a woman and a man, and there is no doubt that a transsexual who has changed their registered gender may marry a person of their former gender. According to the prevailing view, if a transsexual is already married, it is not possible to change one’s gender designation before the marriage is dissolved. The problem arises if, contrary to this view, a court rules to change the gender of a trans-sexual who remains married. In such a case, it is impossible to assume that a same-sex marriage is being formed, as this would be contrary to the Constitution. It is also difficult to consider that the existing marriage expires by operation of law. This article proposes a solution whereby a court ruling providing for a married person’s change of gender has no legal effect.