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Gender and Employee Gender Identity: Considerations in the Context of the Prohibition of Discrimination in Employment

Аннотация

This article analyses the relationship between the concept of gender and an employee’s gender identity within the broad context of prohibiting discrimination in employment. The starting point for this analysis is an attempt to reconstruct the normative meaning of gender and to identify the consequences of the binary gender model for the employment situation of transgender and non-binary
individuals. Th e author examines whether and to what extent anti-discrimination protection for such employees can be derived from gender or from a separate discrimination criterion, namely gender identity. A multi-level analysis of regulations, case law, and legal doctrine leads to the conclusion that the lack of an explicit regulation regarding employees who do not identify with their birth gender does not exclude the employer’s obligation to treat such employees equally to employees who do not question their male or female gender and to prohibit discrimination in employment at all stages. The article proposes considering the concept of reasonable accommodation as an instrument for adapting working conditions to the needs of employees with a non-binary gender identity, while maintaining the principle of proportionality and the limits resulting from the applicable legal system. Th e discussion is conducted using a dogmatic-legal approach, emphasizing the importance of systemic and functional interpretation in resolving confl icts between the norm and the practice of the contemporary labour market and employment. Th e conclusions are de lege ferenda postulates and a starting point for further discussion on the signifi cance of an employee’s gender identity as a prohibited criterion for employment
discrimination.