2023/3 Gender identity as protected characteristic (PL)

Marcin Wujczyk

Marcin Wujczyk is a partner at Wardyński & Partners.

2023/3 Gender identity as protected characteristic (PL)

Compensation for a breach of equal treatment on grounds of sex and gender identity shall be awarded to a transgender employee who is not issued women’s work clothing.

Summary

Compensation for a breach of equal treatment on grounds of sex and gender identity shall be awarded to a transgender employee who is not issued women’s work clothing.

Facts and initial proceedings

The case involved a transgender person who applied to work as a receptionist in October 2016. Recruitment was completed before a court formally changed details of the claimant (name, surname and PESEL number). The claimant was undergoing gender reassignment and was perceived to be a woman during recruitment. However, she presented a previously issued personal identity card stating that she was male. As a result, the claimant was not issued women’s work clothing, and it was pointed out to her that she was entitled to men’s attire in accordance with details of her personal identity card. Because the claimant insisted on being issued a woman’s uniform, the defendant eventually refused to employ her. The claimant then brought a claim for compensation under Article 13 of the Anti-Discrimination Act, namely the Act on Implementation of Certain European Union Provisions on Equal Treatment of 3 December 2010.The district court dismissed the claim by concluding that the defendant did not breach the principle of equal treatment during recruitment or the scope of the claimant’s employment because of the claimant’s transgender status. However, as a result of a claimant appeal, the regional court overturned the first instance court judgment and ordered the defendant to pay the claimant the amount of claim which was PLN 1,480. It also ruled, referring to case law of the Court of Justice of the European Union, that direct discrimination took place by refusal to issue the claimant women’s work clothing. The regional court compared the respondent employer’s conduct in relation to the claimant to that towards a person who did not have transgender features (i.e. a person of female appearance and registered to be of female gender) and showed that the claimant was treated less favourably. A person of female appearance and registered as of female gender would have received female attire, whereas the claimant was treated less favourably solely because of gender identity, namely the fact that she remained registered as male but looked, acted, felt and was perceived to be female. The motive for less favourable treatment of the claimant was her gender identity whose feature is protected by law. The prosecutor general submitted an extraordinary appeal against the court of appeal judgment (referring in part to a breach of Article 2 of the Polish Constitution) but it was dismissed by the Supreme Court.

Judgment

The Supreme Court stated that there was no doubt that the claimant felt she was a woman, acted like a woman and was perceived as such (by the recruiters, among others). There was no dissonance here that would raise doubts about the gender with which the claimant identified and how she wanted to be treated. The Supreme Court emphasised that if the claimant had ‘been a man’ at the time of recruitment, she would not have ultimately obtained a positive judgment establishing that she was a woman (which was already the case before the judgment under appeal). It cannot be overlooked in this case that the claimant must have already developed a sense of belonging and identification with the female gender, otherwise she would not have begun hormone treatment and sought legal action to correct her metric sex. There is also no doubt that a person of female appearance and female metric sex would have been given female attire, whereas the claimant was treated less favourably solely due to her gender identity – the fact that she remained metrically male but looked, acted and felt and was perceived as female. In such circumstances, it is difficult to find that the claimant’s demonstration that her employment was conditional on her acceptance of male attire did not constitute sufficient evidence of discrimination.

Commentary

The judgment can be described as a milestone. The Supreme Court pointed out the need to protect the principle of equal treatment based on sex and gender identity. The ruling was to a large extent based on European law regulations under which ambiguous regulations of Polish law were interpreted. They state that gender identity, which is not explicitly indicated in Polish regulations as a premise for discrimination, should also be considered a premise for unequal treatment.

Comments from other jurisdictions

Germany (Pia Schweers, Luther Rechtsanwaltsgesellschaft mbH): In Germany, protection against discrimination is regulated by the General Equal Treatment Act (‘AGG’). Section 1 AGG lists the characteristics on the basis of which discrimination is inadmissible. It covers the following characteristics: race or ethnic origin, gender, religion or belief, disability, age and sexual identity. According to the case law of the Federal Labour Court, transsexuality is covered by both the characteristic ‘gender’ and the characteristic ‘sexual identity’.Thus, the BAG ruled in favour of a basic liability for damages in a case in which a transgender woman attended a job interview, but the employer did not perceive the applicant as a woman due to her appearance. After the interview, the applicant received a rejection. In this context, the BAG decided that it was not at all important for a discrimination whether the applicant was actually transsexual or whether the employer knew this. It was sufficient here that the employer assumed that the applicant was a transgender person due to her appearance and did not hire her for this reason.This being said, a dismissal on the grounds of a person’s transsexuality, as in the Polish judgment, would also be discrimination in Germany. A German court would presumably have examined, just as the Polish court did, whether the plaintiff’s request for female uniforms would have been justified. Irrespective of the person’s gender as stated in the ID card, this would have been affirmed when the other circumstances (the gender reassignment, the female appearance and the feeling of being a woman) were taken into account. If a person is then terminated despite having legitimately asked for women’s clothing, this constitutes discrimination on the grounds of gender and/or sexual identity.

United Kingdom (Bethan Carney, Lewis Silkin LLP): There seems very little doubt that, if this case was heard before a UK tribunal, the claimant would also have won her discrimination claim. But the question of exactly how to construct her comparator for a direct discrimination claim is still not clear under UK law. The claimant would have had a good indirect gender reassignment discrimination claim, in which she could argue that the policy to limit women’s work uniforms to those registered female was one that disproportionately disadvantaged those undergoing gender reassignment, disadvantaged her personally and was not justified (was not a proportionate means of achieving a legitimate aim). It is less clear whether or not she would have had a direct discrimination claim, as there are conflicting authorities on how to construct the comparator.

Subject: Gender Discrimination Parties: J.Z. – v – S. sp. z o.o. (headquartered in W.) Court: Sąd Najwyższy (Supreme Court) Date: 8 December 2022 Case number: I NSNc 575/21 Internet publication: http://www.sn.pl/orzecznictwo/SitePages/baza_orzeczen.aspx?ItemSID=84243-6e9ffc09-7b83-4b3d-8c04-f640e774865f&ListName=Orzeczenia3&Sygnatura=I+NSNC+575%2f21&FormaOrzeczenia=wyrok+SN

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