Is Sex Essential for Personhood? Being “Halfway Between Female and Male” From the Perspective of Polish Law

Abstract

Intuitively, the issue of legal subjectivity of humans does not appear to raise many doubts. It is the particular aspects of subjectivity, however, that trigger disappointing observations. This text discusses one of them by viewing subjectivity from the perspective of sex, a twofold category encompassing biological and legal sex. It questions the current practice of the legal assignment of sex on the birth certificate: is it a declaratory act (which merely confirms the actual, biological state of affairs), or is it a constitutive act which assigns sex to a human being irrespective of identity? How does the law perceive sex, and to what extent does it respect the current knowledge of its biological determinants? According to the law, being a subject – a natural person – means being either female or male. While there exists no legal requirement to have legal sex assigned in order to be granted legal subjectivity, sex is a mandatory element of the birth certificate, a document which formally confirms a person’s subjectivity. Therefore, failure to assign sex to a newborn makes it impossible to issue the birth certificate, which in turn makes it impossible to exercise one’s rights as a subject of the law. This leads to a situation in which a subject of the law is unable to use an attribute which is granted not by the law, but is inherently part of being born as a human being. The same is the case in the event of misassigned legal sex; a subject affected by the wrong decision of the state faces a range of severe limitations. Current Polish procedures for changing legal sex in order to make it congruent with one’s biological sex are made by the state without the involvement of the affected party and resemble an act of mercy more than an act of will to correct a mistake. This paper presents legal observations based on the experiences of a team of physicians working at the Medical University of Silesia and Upper-Silesian Child Health Care Centre and treating children with Disorders of Sex Development.