PENAL AND LEGAL ASPECTS OF GENDER CONFIRMATION SURGERY. CONSIDERATIONS IN THE CONTEXT OF POLISH CRIMINAL LAW

Abstract

Gender confirmation surgery may be perceived as a strictly medical matter. However, the issue of such surgeries also affects legal matters, mainly civil law and criminal law. The subject of this article is the criminal law aspects of gender confirmation surgery and their analysis from the perspective of the Polish criminal law. The findings presented in the study were reached by 1) analyzing the normative material relating to the subject of this study, mainly by analyzing the Act of 6 June 1997 of the Polish Criminal Code (Dziennik Ustaw [Journal of Laws] of 2019, item 1950, as amended, hereinafter referred to as ‘the Polish Criminal Code’), and 2) by analyzing the views presented in the legal literature and the judicial practice. Taking into account the considerations contained in this article, it is necessary to postulate that gender confirmation surgery procedures should be treated as medical activities (this is a concept already presented in the criminal law science) or as activities not covered by the scope of the normalization of the penal and legal sanctioned norm as expressed in the Article 156 section 1 item 1 of the Polish Criminal Code in connection with the Article 31 section 3 of the Polish Constitution.