Challenges related to data protection and privacy rights of transgender people - report
On February 28, 2025, a conference on the challenges of data protection and privacy rights of transgender people in relation to employment was held. “(No)RIGHTS of transgender people in Poland. How to process personal data of transgender people and effectively counteract discrimination based on gender identity in employment?”. The event was organised by Open for Business and the Trans-Fusion Foundation, together with the President of the Personal Data Protection Office and the Social Team of Experts to the President of the Personal Data Protection Office.
Katarzyna Kotula, Minister for Equality, who was present at the Conference and took the conference under her honorary patronage, emphasised during her speech how important it is to treat all citizens equally. She also referred to the work on drafting a Gender Reconciliation draft Act.
A letter from the Deputy Prime Minister, Minister of Digital Affairs, Krzysztof Gawkowski, was read out, in which he stressed his support for ensuring the protection of privacy, personal data and respect for identity in the working environment and society.
During her introductory lecture, Paulina Pilch, PhD drew attention to the problem of discrimination against transgender people. She also highlighted legal problems and the protractedness of trials as a serious problem.
Łukasz Antkiewicz, leader of Open For Business in Poland, emphasised that open companies attract talent, are more resistant to corruption and attract investors. The more inclusive a company is, the stronger the employee bonds within it, which translates into work efficiency.
The conference was also attended, by Ms Agata Szypulska, representing the Office of the Ombudsman, who stressed that dignity is inherent and inalienable, and that others have a duty to respect it. She also pointed out that it is the duty of public authorities to ensure equal treatment against any discrimination, for any reason, in various areas of social, political or economic life. In his speech, the President of the Personal Data Protection Office Mirosław Wróblewski emphasised that in Poland the process of gender transition has been possible in practice since the 1960s, mainly as a result of judgments and resolutions of the Supreme Court. He pointed out that Polish jurisprudence has generally recognised subjectivity and the need to ensure the protection of gender identity as a fundamental right. However, the President of the Personal Data Protection Office pointed out that there is no statutory regulation in this regard. ‘The protection of personal data serves to protect other fundamental rights. We protect data so that harm does not occur in other areas, such as theft of identity, financial resources or image. Such harm can also be psychological suffering,’ said Mirosław Wróblewski. He also noted that according to the GDPR, personal data is one or more factors related to identity, one of which is gender. So data protection law also protects this aspect of individuals' identities. He also pointed out that both the GDPR and the Polish Constitution guarantee the right to delete information that is incorrect or untrue.
During the presentations and discussions, the legal and practical aspects of processing personal data of transgender people were discussed. The challenges faced by public institutions and employers in ensuring the quality of their handling of transgender people's data were discussed. There was no shortage of examples of good practice. Thanks to this, the Personal Data Protection Office also collected further comments for the revised guide on the processing of personal data in employment.
Data processing for transgender persons from the perspective of the GDPR (including implementation of the principle of data accuracy, right to rectification)
The moderator of the first panel discussion, Dominika Dörre-Kolasa, PhD, began the discussion with the information that the first gender transition process in Poland took place in 1937. How smoothly the process goes depends largely on attitudes and goodwill, and this depends on education and the level of awareness.
Based on his own experience, Grzegorz Żak from the Trans-Fusion Foundation talked about the problems transgender people face with civil documentation and the problems of obtaining a new identity card. It also transpired that these people lose insurance discounts for accident-free driving or certificates for vaccinations completed.
Maciej Kozinski, and Mikołaj Świstowski, shared with the Conference participants their extensive litigation experience in conducting court cases of gender reconciliation. They drew attention to a number of difficulties that may arise in such proceedings, e.g. the approach of the adjudicating judge, the opposition and resistance of the parents, who are able to effectively block a ruling by questioning expert opinions, failure to appear at hearings combined with requests for their adjournment.
Mariola Więckowska, as DPO, talked about the difficulties that officers and controllers encounter when dealing with transgender people. As an IT professional, she also acknowledged that gender and personal identification number (PESEL number) changes in systems are feasible and nothing complicated. It is not a real roadblock, the roadblock can be legislation, the rest is implementable assuming the goodwill of the principal or decision-maker.
Good practice in organisations versus employers' concerns about data protection breaches
The second panel discussed everyday problems such as the presence, in companies and institutions, of gender-neutral toilets. It was emphasised that this does not have to involve high costs when such a toilet is combined with a disabled toilet. It should be remembered, of course, that people with disabilities then have priority in using such a toilet. In some entities, the free choice of changing rooms or toilets enshrined in the status of the institution also works well.
During the discussion, the topic of discriminatory health, safety and labour laws was also raised in the context of indicating what activities an employee can perform on the basis of gender. This can cause quite a problem for employers, as they are responsible for the life and health of their employees. It is therefore worth reflecting on these regulations and being very cautious that a person who has been working as a woman for years is, after a court ruling, expected to do the same job, but with a change in, for example, the lifting parameters. Lifting standards for women are much lower than for men. This is due to differences in body structure and muscle strength, which are not affected by the court ruling.
The costs of social exclusion of transgender people, risks, conclusions and demands de lege ferenda
The third panel started with a discussion on the costs that are generated by the current state of the law, the practice of the justice system and some institutions. It was emphasised that in addition to the financial costs, the costs of the dignity that transgender people have to pay to achieve normality are very important.
Participants in the debate also raised the issue of victimisation. The need to improve the level of education of psychological and medical professionals in helping transgender people was also pointed out.
The topic of identification by family name for women and father's name for men also came up. This was pointed out as an example of gender discrimination.
In addition to improving education, the panellists pointed to the need to start working on a legal regulation allowing for gender reconciliation without having to sue one's own parents, as well as increasing the protection of trans people from prejudice as the most important challenges.