In T.H. v. Czech Republic, the European Court of Human Rights (ECtHR) reaffirmed that requiring trans people to undergo genital surgery as a condition for legal gender recognition violates Article 8 of the European Convention on Human Rights. However, while confirming this important protection, the Court again limited its reasoning to a binary understanding of gender, leaving non-binary identities outside the scope of legal recognition.
The applicant, a non-binary Czech national assigned male at birth, had undertaken hormonal treatment and certain surgeries but declined irreversible sterilising procedures. Czech law allows legal gender recognition only for individuals who have undergone such surgery and only within a male/female framework. National courts rejected the applicant’s application, citing the need to preserve a binary “social order.” Although the Constitutional Court annulled the sterilisation requirement with effect from June 2025, it refused to provide the applicant with an individual remedy.
The ECtHR found a violation of Article 8 (right to respect to private life) but declined to examine complaints under Articles 3 (prohibition against torture and inhumane treatment) and 14 (prohibition against discrimination). In doing so, it avoided addressing the discriminatory and degrading effects of the sterilisation requirement and the broader exclusion of non-binary people. The Court confined its reasoning to private life and declined to recognise any positive obligation to provide neutral gender markers, thereby reinforcing the binary framework of gender identity in European human rights law.
While T.H. consolidates protection against coerced medicalisation, it represents a missed opportunity for the Court to affirm genuine self-determination and equal legal recognition for non-binary individuals.