Tożsamość płciowa to nie płeć – refleksje na tle wyroku Sądu Okręgowego w Warszawie z 29.09.2020 r., V Ca 2686/19

Abstract

The article is a critical overview of a sentence of District Court in Warsaw from 29 September 2020 in which the Court stated that sex-based discrimination on the basis of Equal Treatment Act of 2010 also embraces discrimination based on gender identity. The case was concerning a transsexual person (male to female) who was hired to work in security company as a receptionist. Upon superiors learnt she was a biological male and before legal gender recognition, she was denied working in a female uniform (a skirt and a jacket). Eventually she did not start working. The Court found that she was discriminated since a biological woman would not have been denied possibility of working in a female suit. The Court compared her situation not to her natal sex (since she was formally still a man), but to her eventual gender. The Court found that both discrimination and harassment had place. The verdict is worth discussing in several aspects. Firstly, the Court implicitly accepted the gender self-identification rule, which might be seen as an overinterpretation of the law. Secondly, the Court equates gender identity with sex as a basis of discrimination. Thirdly, such an approach has serious consequences on rule of law and gender equality rule protected by the Polish Constitution. And finally, the Court took female outfit as an indicator of someone’s gender and gender identity and consequently a prohibition of wearing a female uniform as a manifestation of discrimination based on gender identity, which is a very dubious assumption from the equal treatment and feminist perspective.