Poland’s Supreme Court has rejected an appeal by justice minister Zbigniew Ziobro to overturn a discrimination ruling won by a trans woman, Joanna Żelek, whose employer had ordered her to wear male uniform.
The case – which is the first of its kind in Poland – is seen as a landmark in a country that is ranked as the EU’s worst for LGBT people and where the conservative government has led a concerted campaign against what it calls “LGBT ideology”.
Żelek had applied to work for a security company while still going through the process of legally changing her gender identity – a difficult and lengthy procedure in Poland – meaning that, although she identified as female, her documents showed her as male.
She had applied as a woman and was treated as such throughout the recruitment process. But, when the firm discovered that she was legally still identified as a man, her boss made employment conditional on her wearing a male uniform.
She refused to comply and sued the company for discrimination, with support from Poland’s then commissioner for human rights, Adam Bodnar. Initially, her case was rejected by a lower court but she then won on appeal in 2020.
Bodnar noted at the time that it was the first such ruling in Poland deriving from a law on equal treatment introduced in 2010 to implement EU provisions in this area. The judges in the case also cited Poland’s constitutional principles of equal treatment and protecting the dignity of every human being.
However, Ziobro, in his capacity as prosecutor general, used his right to ask the Supreme Court to overturn the ruling. He argued that it restricted the constitutional freedoms and rights of the security firm, reports the Rzeczpospolita daily.
Żelek’s case was supported by Bodnar’s successor as human rights commissioner, Marcin Wiącek, who pointed to the European Court of Human Rights’ position that the gender identity of trans people is protected even in the period before they legally transition.
On Friday, it was announced that the Supreme Court had rejected Ziobro’s complaint, though the justification for its ruling will not be published until a later date.
The judgement was hailed by Campaign Against Homophobia (KPH), an NGO that has supported Żelek. It “forever sets the standard of protection and treatment that transgender people can expect from their employers”, said Paweł Knut, a lawyer representing KPH.
Trans kobieta wygrała w Sądzie Najwyższym.Tego wyroku Ziobro nie podważy!
Sąd Najwyższy oddalił skargę nadzwyczajną @ZiobroPL od wyroku Sądu Okręgowego,w którym Joanna Żelek wygrała z firmą w związku z dyskryminacją ze względu na tożsamość płciową
Więcej https://t.co/hPosICf0Ie pic.twitter.com/hry4mENdmg
— Kampania Przeciw Homofobii (@KPH_official) December 9, 2022
Żelek herself also welcomed the judgement, but added that she saw Ziobro’s decision to bring the case to the Supreme Court as “an attempt to put pressure on the judiciary”.
Ziobro has often intervened in such issues, for example supporting a print-shop employee who had refused to carry out work for an LGBT client and a man fired by IKEA for making homophobic remarks, including quoting Bible passages suggesting that gay people deserve to be killed.
Jarosław Kaczyński, the leader of the ruling Law and Justice (PiS) party, has in recent weeks repeatedly raised concern about the idea of allowing people to declare their own gender identity, calling it “Western madness” that “destroys the family”.
While LGBT rights remain more limited in Poland than in other EU countries, recent years have seen a number of court rulings in their favour. Last year, the Supreme Administrative Court found that a person who underwent a sex reassignment procedure abroad has the right to receive a Polish passport recognising her new legal identity.
Main image credit: Krzysztof Cwik / Agencja Wyborcza.pl
Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.
