The Constitutional Court decided in ruling C-324 of 2023 that maternity leave is applicable to transgender men and non-binary people as the terms 'working woman', 'mother' and 'woman' mentioned in Article 236 of the Substantive Labour Code are not prejudicial.
The Court determined that any discriminatory treatment based on an individuals self-determination and gender experiences is considered unconstitutional, especially when it encroaches upon the exercise of their other rights. Consequently, all the social security rights intended for women must be interpreted in alignment with the principles of equality and non-discrimination.
Further, the Court emphasises that the fundamental rights of the unborn must also be taken into account. Paid maternity leave is designed to safeguard the fundamental rights of the unborn, which should not be compromised based on the gender identity of their parents.
Therefore, all maternity protection must apply to both transgender men and non-binary persons who are pregnant, whether they identify themselves as a women or not.