-I hope this ruling gives courage to many others in a similar position and inspires them to fight for their rights. I also hope it makes them aware of the fact that their rights are not only hypothetical. They have a real possibility to legally defend themselves- says Joanna, happy to see a three-year-long court battle finally come to an end.
When a security agency hired her, she was already going through the process of gender recognition. It is a complicated procedure that was supposed to be facilitated by the 2015 Gender Accordance Law, but President Andrzej Duda decided to veto it.
Even though her identity documents formally indicated that she male, Joanna was already functioning in accordance with her felt gender. Nevertheless, at work, she was forced to wear a male uniform.
She decided to bring the case to court and was represented by lawyers from the LGBT rights organization Campaign Against Homophobia. Poland’s Commissioner for Human Rights joined the case in its appeal stage.
In the lawsuit, Joanna’s lawyers accused her employer of violating the principle of equal treatment through discrimination and harassment in the workplace. They referred to the so-called 2010 Equal Treatment Act.
Although the act does not explicitly mention gender identity, it prohibits workplace discrimination based on sex. "The case-law of the EU Court of Justice and soft law research by international organizations clearly indicate that the prohibition of discrimination based on sex also applies to gender identity” – said the Commissioner for Human Rights.
The Equal Treatment Act defines harassment as “any unwanted conduct that has the purpose or effect of violating the dignity of an individual and of creating an intimidating, hostile, degrading, humiliating or offensive atmosphere around that individual”
LGBT. Court invokes the Polish Constitution
Initially, the regional court dismissed the claim. "Among other things, the court pointed out that wearing a uniform intended for men doesn’t classify as a humiliating act, because women are allowed to wear pants since the 19th century"- members of the Campaign Against Homophobia reported. At the same time, Joanna’s female work colleagues could freely choose to wear the uniform they wanted. The District Court in Warsaw which considered the appeal, however, was of a different opinion.
While the issue of transgender rights has not yet been settled and independently regulated in the Polish legal system, the prohibition of workplace discrimination against transgender people is already part of the Polish legal order because the principle exists in Community law. Moreover, the prohibition of discrimination based on gender identity can also be derived from the constitutional principles concerning the protection of human dignity and equal treatment – reads the court’s justification.
In its decision, the court also pointed out that since the Equal Treatment Act implements EU rules "it must be interpreted in a way consistent with the principles of Community law and the case-law of the EU Court of Justice".
This means that the Polish law protects transgender people from discrimination and that they may invoke the gender premise that the Equality Act refers to.
The court rules workplace discrimination against transgender people illegal
Both the Commissioner for Human rights and the Campaign Against Homophobia emphasize the importance of the ruling.
For the very first time, a court invoked the 2010 act to rule in a case of violation of equal treatment based on gender identity, thus setting a legal precedent.
-This court ruling is of historical significance. For the first time ever, the Polish court confirmed that transgender people must not be discriminated against in the workplace. The court’s emphasis on the Constitutional dimension of the ruling, as well as its reference to the so-called Equality Act, sets a new standard for the protection of transgender rights in Poland. It makes us all very proud- says Paweł Knut, Joanna’s representative, and a member of the Campaign Against Homophobia organization.
Joanna’s other representative, attorney Karolina Gierdal, adds: - The court showed a deep understanding of Joanna's situation, it understood the essence of what it means to be a transgender person and acknowledged the fact that even if she was still going through the formal process of gender recognition, at the time of her job application, Joanna was a woman. The court decided it was more important who Joanna really was, and not what the documents claimed her to be.
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