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17 May: International Day Against Homophobia, Transphobia and Biphobia
Date:
17 May marks the International Day Against Homophobia, Transphobia and Biphobia. Its aim is to draw attention to the difficult situation of LGBT+ persons and the need to counter the phenomena of their unequal treatment and discrimination.
The Commissioner for Human Rights has been acting as an independent body for equal treatment since 2011. It remains within the scope of his statutory duties to uphold the equal treatment of all persons, including regardless of sexual orientation and gender identity.
The Commissioner recognises the difficult situation faced by LGBT+ persons in Poland and seeks to actively counteract the phenomena of their unequal treatment and discrimination. The Commissioner continues to call for respect for the dignity of others, which is an impassable limit for freedom of expression in public debate.
The need to strengthen efforts to ensure equal treatment of LGBT+ individuals in Poland is also indicated by EU data. A recent survey by the EU Agency for Fundamental Rights (FRA), based on responses from more than 100,000 LGBTIQ persons across Europe, shows that only 4% of Poles believe that the Polish government is effective in tackling prejudice and intolerance towards LGBT+ persons (the EU average is 25%).
In the Commissioner's view, it is necessary to introduce appropriate legislation, including:
- widening the scope of the concept of ‘hate crime’ by adding sexual orientation and gender identity to the catalogue of discriminatory grounds,
- introduction of provisions on legal gender reassignment,
- institutionalising civil partnerships,
- enabling children of same-sex couples born abroad to obtain Polish identity documents.
The CHR’s actions to repeal local government ‘anti-LGBT’ resolutions
According to the Commissioner, the content and effects of resolutions adopted by some local authorities in 2019 and 2020 relating to countering or stopping LGBT ‘ideology’ violated the principles of the rule of law, equal treatment and prohibition of discrimination, protection of human dignity, freedom of expression, the right to protection of private and family life and the right to education.
As a consequence of the actions taken by the Commissioner for Human Rights, European Union bodies and social organisations and activists for the LGBT+ community, all discriminatory ‘anti-LGBT ideology’ resolutions passed by local government units in 2019-2020 have been repealed or annulled.
The Commissioner filed a total of 15 complaints to the voivodship administrative courts against such resolutions. As a result of the administrative court proceedings initiated by the CHR, the challenged resolutions were declared null and void.
https://bip.brpo.gov.pl/pl/content/rpo-wsa-wszystkie-uchwaly-anty-lgbt-uniewaznione
Opinion of the CHR on the citizens' bill limiting the rights of LGBT persons
The Commissioner presented to the Marshal of the Sejm a critical opinion on the civic bill amending the Act of 24 July 2015 - Law on Assemblies and selected other laws (parliamentary print no. 26). He stressed that the bill's assumptions are contrary to current scientific knowledge: medical, psychiatric and psychological, and based on prejudice against LGBT individuals.
The draft should be considered unconstitutional and in breach of the international obligations of the Republic of Poland. It is incompatible with the principle of protection of human dignity. It also impermissibly restricts freedom of expression and freedom of assembly. The ban on assemblies such as equality marches violates the prohibition of discrimination based on sexual orientation and gender identity.
https://bip.brpo.gov.pl/pl/content/rpo-obywatelski-projekt-ustawy-anty-lgbt-opinia
Opinion of the Commissioner on the amendment of the Penal Code broadening the scope of hate crimes
The Commissioner presented an opinion on the government's draft amendment to the Penal Code, broadening the scope of application of the term ‘hate crime’ by adding disability, age, gender, sexual orientation and gender identity to the catalogue of discriminatory grounds.
The proposed changes correspond to the postulates presented in the CHR's general speeches from previous years.
The only modification to the draft proposed by the CHR concerns Article 53, § 2a, point 6 of the Penal Code, which indicates discriminatory motives for committing a crime as aggravating circumstances for its perpetrator. The Commissioner requests that these circumstances also include situations in which the victim is a person defending a person due to the characteristics specified in this provision, who does not have such characteristics him/herself.
https://bip.brpo.gov.pl/pl/content/rpo-opinia-nowelizacja-kk-przestepstwa-nienawisc
Identity cards for Polish children of same-sex couples born abroad
Foreign-born citizens of the Republic of Poland, with their foreign birth certificates showing same-sex couples as parents, face numerous legal problems in Poland. Following the resolution of 7 judges of the Supreme Administrative Court of 2 December 2019 (ref. II OPS 1/19), which indicated that the transcription of the certificate (transfer to the Polish civil status register) is inadmissible in such a situation, the way to acquire a Polish birth certificate has been closed for these children.
Although, in the aforementioned resolution, the Supreme Administrative Court (NSA) ruled that, for these children, obtaining a PESEL number and an identity card is not dependent on the transcription of a foreign birth certificate, they still face problems in obtaining an identity document and entry in the PESEL register. Consequently, the rights of children who have same-sex parents are limited for this reason alone. Without Polish identity documents and a PESEL number, they cannot enjoy many of the rights associated with citizenship (e.g. public health or education), as well as the freedom of movement and choice of residence, which are fundamental to EU law.
The Commissioner has been working for years to change this state of affairs. As demands for required legislative changes remain unfulfilled, the Commissioner participates in and also initiates court proceedings as part of strategic litigation. According to the RPO, the decision to refuse the transcription due to its consequences of refusing to issue a travel document to a minor Union citizen violated EU law - the freedom of movement of persons under the Treaty on the Functioning of the EU and provisions of the Charter of Fundamental Rights of the European Union.
On 24 June 2022, the CJEU examined a preliminary question posed by the Voivodship Administrative Court (WSA) in Krakow. The Court pointed out that regardless of whether Polish law recognises same-sex couples and the possibility of their parenthood, the child of such a couple must be able to obtain an identity card or passport allowing them to travel within the European Union and stay with their parents, regardless of whether they are of the same sex.
On 28 February 2024, the NSA dismissed the cassation appeal and upheld the contested judgment of the WSA as regards both the verdict and the grounds, concerning the transcription of the birth certificate of a boy born in the United Kingdom, whose British birth certificate lists two women as parents. It expressed the legal view that, although the authority should apply for a PESEL number and issue the child with an identity card, the first name of the biological mother should be entered in the field ‘Names of the parents’, while ‘no data available’ should be entered in the space reserved for the father's name.
The complainant, as well as the CHR and the Commissioner for Children's Rights agreed with the judgment of the WSA on the merits, but requested a change in the legal view expressed in the justification - indicating that the data from the ‘Names of parents’ column should be consistent with the data indicated in the foreign birth certificate.
However, the NSA did not share these positions, nor did it decide to ask a preliminary question, as requested by the CHR.
Institutionalisation of same-sex relationships
In 2020, the Commissioner for Human Rights joined three cases before the European Court of Human Rights concerning the legal situation of same-sex couples in Poland. He presented amicus curiae briefs in these cases.
On 12 December 2023, the Strasbourg Court decided the case of Przybyszewska and Others v. Poland brought by five same-sex couples seeking legal recognition of their relationships in Poland (application no. 11454/17 and 9 others). The complaints alleged that the right to private and family life had been violated by preventing these couples from legalising their relationship and thus being recognised by the state and granted legal protection.
The Court upheld the previous case law and ruled that the applicant couples had the right to demand legal safeguards for their relationships from their states. In the Polish cases, the ECtHR found a violation of Article 8 of the European Convention on Human Rights, which requires state parties to ensure the protection of everyone's right to private and family life. The Court ruled that the Polish state had failed to fulfil its obligation to provide the applicants with a concrete legal framework for the recognition and protection of their same-sex relationships.
https://bip.brpo.gov.pl/pl/content/rpo-nieuregulowanie-zwiazkow-jednoplciowych-etpc-wyrok
The Commissioner's actions on the judicial gender reassignment procedure for transgender persons
The Commissioner for Human Rights takes steps to improve the situation of transgender individuals in Poland, advocating, among other things, that the gender reassignment procedure should be efficient, transparent, generally accessible, and respectful of a transgender person's physical integrity and private life.
In Polish law, despite legislative attempts, the Ombudsman's demands and the continued involvement of social organisations, there are no provisions regulating gender reassignment - the change of the gender designation in documents so that the entry in the document is consistent with the perceived sex. The Gender Reassignment Act, passed on 10 September 2015, did not enter into law due to the President's veto, which was not rejected by the Parliament. The negative effects of this legal gap are numerous and severe for transgender persons. They also remain a challenge for the judiciary, which, over years of jurisprudential practice, has developed a standard of conduct that provides a certain level of protection for the right to live in conformity with one's gender identity. Bringing an action against parents under Article 189 of the Code of Civil Procedure, a solution adopted in the 1990s when a series of Supreme Court decisions laid the foundations for it, remains far from perfect from the perspective of protecting the human rights of transgender persons. However, it is currently the only available option for legal gender reassignment in Poland. Therefore, it is important that the proceedings conducted under this procedure meet international standards as much as possible, with the least possible interference in the rights of the individual.
Complaints to the Commissioner and monitoring of court cases suggest that many proceedings deviate from the standard set by recent case law. The public prosecutor is also involved in many gender reassignment proceedings, although it is difficult to find a legal justification for the involvement of this authority in proceedings that concern only the personal sphere of a transgender person. For this reason, the CHR prepared the publication "Gender Reassignment Proceedings. A Guide', which was published in 2024.
The CHR also joins court proceedings on gender determination, and has filed an extraordinary appeal against a final judgment dismissing a claim by a transgender person. The CHR also requested that the Supreme Court refuse to adopt a resolution on the motion of the Prosecutor General in the case of suing the spouse and children in judicial gender reassignment. According to the Commissioner, there are no discrepancies in the jurisprudence of common courts as to the persons who should appear on the side of the defendant in proceedings for correction of the metric sex, decided on the basis of Article 189 of the Code of Civil Procedure. Thus, there is no need to unify the case law - the prerequisites for the resolution are not met.
It must be stressed, however, that judicial action, including strategic litigation, is not a substitute for necessary legislative amendments. Therefore, the Commissioner postulates that in the near future the legislator shall adopt legal provisions regulating the procedure of gender reassignment, which will take full account of the standard of protection of human rights of transgender persons. With this in mind, the CHR has recently asked the Minister of Justice to include this type of proceedings in the catalogue of urgent cases in the Rules of Procedure of the common courts. They could then be considered out of the order of receipt.
The Commissioner for Human Rights also takes action to improve the situation of transgender individuals in Poland in other areas, such as employment, education, health care or military service.
