INFORMATION PAPER ON LGBTI
DISCRIMINATION IN POLAND
FOR
THE EUROPEAN COMMISSION
AGAINST RACISM AND INTOLERANCE
(ECRI)
WARSAW, APRIL 2014
This information paper was prepared as a joint effort of the following
human rights and non-discrimination organisations:
 Polish Society of Antidiscrimination Law
 Lambda Warsaw
 Campaign Against Homophobia
 Trans-Fuzja Foundation
 The Diversity Workshop
 Helsinki Foundation for Human Rights
Table of content:
1. Protection of LGBT persons from hate speech and other biasmotivated crimes in Poland
2. Examples of homophobic hate speech in Polish public discourse
3. Lack of effective protection against discrimination for LGBT
people in Polish equality law
4. Same – sex families. Legal aspects.
5. Transgender rights in Poland
6. Homophobia and transphobia at schools
7. Health issues
1. Protection of LGBT persons from hate speech and other bias-motivated
crimes in Poland
Bias-motivated crimes in Poland
Polish Penal Code contains several provisions penalizing generic hate crimes. Articles
118, 118a and 119 are located in Chapter XVI of the code, which groups crimes against
humanity and war crimes. These provisions protect individuals and groups alike.
Extermination, homicide, grievous bodily injury, but also using violence and unlawful
threats on grounds of nationality, ethnicity, race as well as religion (or lack thereof) and
political views are all offences prosecuted ex officio. Articles 256 and 257 are located in
Chapter XXXII of the code, which groups crimes against public order. These provisions
penalize public “incitement to hatred”, public insults and transgressions of personal
inviolability – as long as such offences were committed on grounds of nationality,
ethnicity, race, religion or lack thereof. Protection is granted to groups of population as
well as individuals; the offences – sometimes referred to as “criminal discrimination” or
“crime of discrimination” – are prosecuted ex officio. Neither the penal code nor any
other provision of Polish law penalize bias-motivated crimes against LGBT persons.
Available legal protection for LGBT persons
There are several ways LGBT persons can seek legal protection from homophobia,
however both level and scope of such protection is far from what the aforementioned hate
crime regulations have to offer. Furthermore, the available protection is granted to
individuals only: hate speech which targets LGBTI persons as such, in general, as a group
of population, is not illegal. Attempts to prosecute such acts have been made, but to no
avail.
Insults, slander and transgressions of personal inviolability can all be subject to a lawsuit
for protection of personal rights. Since such cases are heard by civil courts, there is no
crime and no punishment – one can only demand satisfaction and (in some cases)
compensation. Furthermore, one needs to prepare a lawsuit (which requires finding out
the defendant’s name and address) and pay a court fee of PLN 600 (losing the case
generates further costs) – not to mention supporting the lawsuit in court. None of this is
required nor expected from victims of hate crimes – they need only to report the crime to
the police and later testify in court.
Insults, slander and transgressions of personal inviolability can be also subject to a private
indictment. Private prosecution cases are heard by criminal courts, but the maximum
penalty for such offences is one year of imprisonment (usually the punishment is a fine,
sometimes – a restriction of liberty; imprisonment penalties are very rare). Meanwhile
article 256 allows public “incitement to hatred” to be punished with up to two years of
imprisonment and article 257, penalizing public insults and transgressions of personal
inviolability, allows sentencing for up to three years of imprisonment (article 257 does
not mention fines nor restrictions of liberty – imprisonment is the only available
punishment for this offence). Other aspects of private prosecution are similar to those of
a civil procedure: a private indictment needs to be prepared (like a lawsuit) and a court
fee has to be paid (PLN 300), furthermore the losing party needs to reimburse the costs
suffered by the winning party. Again: victims of hate crimes can simply report the crime
to the Police, which takes the case from there.
Other offences against LGBT persons constitute “ordinary” crimes, like bodily injury,
threats etc. Although prosecuted ex officio, their bias aspect is usually lost or remains
unrevealed altogether, as it is of little or no importance for the police and public
prosecutors. Though motivation of the offender can influence the imposed punishment,
in case of offences against LGBTI persons it does not influence the classification of the
crime. As a result, if the circumstances of the case do not point towards bias motivation, if
this motivation is not obvious and apparent, the Police is not interested in investigating
this aspect of the case.
Proposed amendment to the Penal Code
A bill to amend articles 119, 256 and 257 of the Penal Code was prepared by Polish LGBT
organizations and submitted in the parliament in 2011 by one of the opposition parties.
The amendment added new grounds of protection from hate crimes – disability, age,
gender, gender identity and sexual orientation. During its first and only reading on
13.07.2011 the proposal was heavily criticized by right-wing MPs (with homophobic hate
speech being used frequently during the parliamentary debate) as an attempted attack on
freedom of speech. The position of the government (which is obligatory when a code is to
be amended) was very reserved and reluctant. The proposal was not rejected, but – in face
of elections planned for November 2011 – the parliament did not continue working on it.
The bill to amend the Penal Code was resubmitted in March 2012 by two opposition
parties. Its first reading on 24.05.2012 saw the return of radical homophobic rhetoric as
well as a clearly negative position of the government (claiming that such amendment is
unnecessary and would distort the code). Despite of that the bill was not rejected – work
on the amendment was to be continued by the Extraordinary Committee on Amending of
Codifications and its permanent subcommittee for penal law. Once this decision was
made, the bill was put on hold, awaiting its turn to be discussed by the subcommittee.
Meanwhile a different bill to amend the abovementioned provisions was submitted –
supported by a number of MPs from the ruling Civic Platform party. With an entirely
different approach than the opposition bill, it was criticized by experts and NGOs as vague
and flawed. The government did not support this bill either, repeating that such
amendment is not necessary. It was, however, decided that work on both bills will
continue. On 11.03.2014, after nearly two years of waiting, the opposition bill was finally
discussed by the subcommittee. Chances for a second and third parliamentary reading of
this bill – in this term – seem to be slim.
At present there are three deputies’ draft amendments to the Criminal Code. All of them
propose significant changes in current legislation governing the issue of bias-motivated
crimes. Two draft amendments propose to add such additional prerequisites of criminal
protection: sex, sexual orientation, gender identity, age, disability. The government
opinion as to both of this projects is negative. According to the Council of Ministers, there
is no need for such an amendment. According to the Council of Ministers, even though
there is no special provision in the Criminal code enlisting these characteristics as part of
specific crimes, people are protected based on general provisions of the criminal code and
the discriminatory inspiration of the act is to be considered by courts when deciding on
the punishment as under the general principles of punishment. The justification of the
official position of the government betrays extreme inaptitude in dealing with the very
terms ‘sexual orientation’, ‘sex’, ‘gender identity’, ‘age’ and ‘disability’. This conclusion is
inevitable considering three arguments. Firstly, the argument that special provisions as
provided by the proposals would lead to lessening the protections accorded by the law.
As an example, the government submitted that the special provision (i.e. the proposed
Article 256 proscribing hate speech) would derogate special punishment provided for
aggravated manslaughter under Article 148.2. The argument would suggest that for
example aggravated manslaughter does not cover manslaughter motivated by racial,
ethnic or national hatred and other discriminatory grounds enumerated in Article 256
because racial, ethnic and national hatred etc. is only proscribed by the Criminal Code to
the extent those words are spelled out in specific provisions of the criminal code whereas
such enumerated discriminatory states of mind cannot be considered as criminal
motivation deserving special condemnation’ as under Article 148.2 Criminal Code [‘w
wyniku motywacji zasługującej na szczególne potępienie’]. Secondly, the government
submitted that adding new discriminatory grounds work to the detriment of the victims
because discriminatory criminal behaviour would be prosecuted ex officio; it is to be
understood that the only detriment in this is that victims would no longer be able to stop
proceedings. Thirdly, the new discriminatory grounds – such as sexual orientation, gender
identity, and sex – originate from international law instruments; it would thus be difficult
to make sure that the terms are construed in the same way ‘universally’ [problemy z
powszechną rekonstrucją ich treści].
The third draft amendment was presented on November 28, 2012 by the Civic Platform
party [Klub Parlamentarny Platforma Obywatelska]. The project suggested significant
changes in current legislation governing the issue of bias-motivated crimes by inter alia
adding additional prerequisites of criminal protection. According to the draft-law
incitement to hatred and abuse of a person would be also penalized if motivated by
his/her “political, social affiliation” or “natural or acquired personal qualities or beliefs”.
The amendment act was widely criticised by lawyers and Polish NGOs e.g. on December
21, 2012 HFHR presented official statement on the project . In HFHR’s view proposed
amendments to the criminal code (mentioned above prerequisites of criminal protection
- “social affiliation”, ”natural or acquired personal qualities or beliefs”) are inaccurate and
thus in conflict with legislator’s obligation to lay down the criminal provisions that are
clear and precise.
2. Examples of homophobic hate speech in Polish public discourse
Despite a wide variety of behaviours serving as examples of hate speech, there exists no
definition of it in current Polish legislation. Hate speech and hate crimes aimed at LGBTI
groups haven't been specified or distinguished in any way in the Polish Penal Code, thus
hindering any research concerning the scale of such occurrences. The major problem with
the current data collection methods is that statistical data are not divided into any
categories other than those relating to the classification of the criminal act. Thus
identifying the discriminatory nature of the crime and further analyses are impossible in
respect of specific discriminatory problems (e.g. anti-Semitism, racism, anti-Roma).
Therefore, on the basis of the statistics one is able to say what is the overall number of
instigated criminal proceedings in the reference period concerning racist and biasmotivated crimes (arts. 119 and 256 of CC) but there is no indication concerning the
specific discriminatory problems (racism, ethnic hatred, religious intolerance, etc.).
During a conference held in Warsaw by the Council of Europe on the 18th and 19th of
September 2013, under the theme "The hate factor in political speech - Where do
responsibilities lie?", Morten Kjaerum, the director of the EU Agency for Fundamental
Rights, stated that due to FRA research, on average, 44% of the citizens of EU countries
notice homophobic statements made by their politicians. Amongst other EU countries,
Poland ranked third (83%).
Below there are some examples of hate speech in the form of aggressive speech employed
in parliamentary debates, which serves as part of a political game and as a way to attract
the conservative electorate.
"Supposedly these people are savages, and yet they know that one should not insult the
laws of nature. Let us only hope that they don't imprison the convicts in shared cells." twitter post by MP of Law and Justice Party, Stanisław Pięta, on Uganda's reintroduction
of the life sentence for homosexual acts (21st of December, 2013).
"There are 40 deputies (in Palikot's Movement Party), but for a party that focuses on
women's rights, there are only 2 women there, including an unnatural one" – MP of
Democratic Left Alliance Party, Tadeusz Iwiński, remarking on Anna Grodzka, Poland's
first transsexual deputy (January, 2012).
"Europe is a brothel where everything is allowed, with a goat, with a horse, with a monkey,
with another woman, with a child, with anyone. In this whole resolution they are calling
for the legalization of all these sexual tendencies" - MP of Law and Justice Party, Krystyna
Pawłowicz (9th of February, 2013).
"So now it will be legal to have sex even with goats, monkeys, etc.? Now that women can
with women and men with men, why not?" - MP of Law and Justice Party, Krystyna
Pawłowicz (1st of February, 2013).
"For ages homosexuality has been regarded as a serious depravity, and homosexual acts,
due to their inner nature, as chaotic and standing in contradiction with the laws of nature,
regardless of their existence within various cultures over the course of time. The
propagators of homosexuality are attempting to deceitfully equate homosexual
relationships to heterosexual relationships that have not yet been registered, to this day
existing under the name of concubinage, and to grant them the rights similar to those of a
marriage, that is a registered relationship between a man and a woman" - MP of United
Poland Party, Tadeusz Woźniak, commenting on the bill on civil partnerships (24th of
January, 2013).
"(...) Nature isn't perfect. There exist certain anomalies and 'freaks' within it. In a normal,
healthy human the sex drive is directed at people of the opposite gender. When someone
suffers from sexual disorders, people of the same sex, minors, animals or things become
the object of their sexual desire. And even if the whole of the European Union... "Gazeta
Wyborcza", president Obama and you, deputy... were to proclaim idiocies about the
existence of sexual orientation, you will not falsify... you won't falsify reality. Freedom of
speech does not mean that this matter is to be trifled with. (...) I'd like to announce that
this gay fascism that you are proposing... it won't wash" - MP of Law and Justice Party,
Stanisław Pięta, remarking on the amendment of the penal code (24th of May, 2013).
"This Mr. Grodzki, he sat next to me during the broadcast and I kept saying "mister, oh
um, miss" and um... He said: "well I'll go to court..." and I say:"so go to court". If I see a guy
sitting next to me, what am I supposed to say, "miss", huh? (...) we were together in one of
the auditions on the radio and he kept on proving to me that he is in fact a woman, that he
feels like one and all that. And I say "look, mister...". I didn't say "mister", I said - of course
- "miss", cause they'd kill me over there... But I kept on having to correct myself. Really, he
has a boxer's face! So how am I supposed to call him? (...) Alright, so I say: "well, miss", I
say, well, "if someone stuffs themselves with hormones and goes through an operation or
two, that doesn't make them a woman, it doesn't work that way. The genetic code is the
decisive factor. Go ahead, let's do some blood testing, you can't change anything there, no
operation can change that" - MP of Law and Justice Party, Krystyna Pawłowicz, speaking
about Anna Grodzka (January, 2013).
"We're under EU occupation. For me, bleh, gays are the agents of foreign and hostile
occupation forces, therefore burning symbols such as the rainbow is a righteous deed" leader of the Congress of the New Right Party, Janusz Korwin-Mikke.
In this context of hate speech towards LGBTI people the ineffectiveness of parliamentary
mechanism of responsibility should be underlined. In case of a twitter message of
Stanisław Pięta (cited above) the Helsinki Foundations for Human Rights has sent a
complaint to the Parliamentary Ethics Commission [Komisja Etyki Poselskiej] on 7 January
20141 pointing to its homophobic and racist character. The Foundation has received an
answer on 21 march 2014 that the Commission by way of vote has decided to discontinue
1
http://www.hfhr.org.pl/dyskryminacja/images/KEP%20pismo.pdf
proceedings2. This situation raises a question as to the effectiveness of this mechanism of
MPs responsibility.
2
http://www.hfhr.org.pl/dyskryminacja/images/KEP%20odp.pdf
3. Lack of effective protection against discrimination for LGBTI people in Polish
equality law
The Act on implementation certain provisions of the European Union on equal treatment
of 3 December 2010 (so called “equality bill) (Ustawa z dnia 3 grudnia 2010 r. o wdrożeniu
niektórych przepisów Unii Europejskej w zakresie równego traktowania) entered into force
as of 1 January 2011. The new law is aimed at implementing into the Polish legal system
the a number of EU Equality Directives. Adoption of the new law was a result of a number
of infringement procedures launched against Poland for non-implementation of equality
Directives into the Polish legal system. The law implements anti-discrimination
regulations concerning gender equality, sexual orientation, race and ethnicity, age,
disability, religion or belief, creed, nationality. The law includes the following concepts of
discrimination: direct discrimination, indirect discrimination, harassment, sexual
harassment, unequal treatment understood as direct discrimination, indirect
discrimination, harassment and sexual harassment, as well as any less favourable
treatment based on a person's rejection of or submission to such conduct, instruction to
discriminate against persons on grounds covered by the law. According to the new law,
any person (physical or legal) who was subject to unequal treatment is entitled to
compensation. In these cases, the regulations of the Polish Civil Code (Ustawa z dnia 23
kwietnia 1964 kodeks cywilny) will be applied. According to the new law, two public bodies
were granted competences in the field of equality: the Human Rights Defender and
Government Plenipotentiary for Equal Treatment.
However, there is a significant lack of effective legal protection against discrimination of
LGBTI people in Polish legal system. The equality bill is heavily criticized by Polish
equality NGOs, academics and the Human Rights Defender (Rzecznik Praw Obywatelskich)
- a national equality body, because of its unequal protection against discrimination for
respective groups exposed to unequal treatment. The least protected ground is sexual
orientation, which enjoys the right to equality only in the sphere of employment, whilst
the grounds of race, ethnic origin and nationality (and less gender) are protected in all
spheres of life. It is worth-mentioning that gender identity and gender expression are not
mentioned within the equality bill. On 28 May 2012 the current Human Rights Defender
(HRD) presented her official statement concerning this issue in a letter to Government
Plenipotentiary for Equal Treatment. HRD indicated that the Act on equal treatment does
not provide adequate legal protection as its scope of application changes depending on
the grounds of discrimination. HRD evoked the argument of the non-governmental
organisations and pointed out that the terminology of the Act on equal treatment is
inconsistent. Furthermore, HRD emphasized that due to incoherence with the provisions
of Polish civil code, the possibility of obtaining compensation on the basis of the Act on
equal treatment is questionable. In the HRD’s view, the Act on equal treatment cannot be
regarded as an effective mechanism of combating discrimination as there have been only
30 claims for compensation on the grounds of its provisions in 2011 and in most cases,
the compensation was not granted or the claim was dismissed.
The official statistics of the Ministry of Justice show that the equality law is not often used
in Polish courts. There are currently only few lawsuits lodged to the Polish courts, mostly
by equality NGOs. It shows that individuals and professional lawyers are not familiar with
the protection assured by the law.
The reports of equality NGOs (e.g. “Report on antidiscrimination law in the daily practices
of Polish courts” by Polish Society of Antidiscrimination Law) revel that Polish judges are
not very much familiar with both the concepts of discrimination of LGBTI people as well
as with the legal provisions included in the equality law. Also, there is a noticeable and
worrying high level of prejudices within Polish judges against LGBTI people – victims of
discrimination3.
On 21 June 2013 the first parliamentary reading was held of the draft act on amending the
equality bill. The draft law was presented as a joint motion by two opposition parties, the
Palikot’s Movement (Ruch Palikota) and the Democratic Left Alliance (Sojusz Lewicy
Demokratycznej). It aims to ensure an equal level of protection against discrimination for
all the grounds of discrimination. The draft law faced strong criticism from the right-wing
political parties and conservative media sources, which argued that it limits the freedom
of speech and freedom of religion, introduced the ‘homosexual propaganda’ and
contributed to the “promotion of gender ideology”. The draft law also met with critical
opinions of the legal services of the Polish Parliament, which claimed that it exceeded the
requirements of the EU legislation and may constitute a potential violation of economic
freedom. Despite this, the draft law was referred to the Parliamentary Committee for
Justice and Human Rights (Komisja Sprawiedliwości i Praw Człowieka) for further
legislative work. On 8 October 2013 the Special Subcommittee was created for the
purpose of detailed legislative work on the draft law. Unfortunately, the Subcommittee is
not proceeding the draft law effectively. The Coalition for Equal Opportunities – informal
platform of 53 Polish equality NGOs urged the Subcommittee and the Speaker of the
Parliament several times to accelerate the legislative works. No effects so far.
It is also worth-mentioning that the institutional mechanisms of combating
discrimination (mainly The Human Rights Defender) are not effective enough because of
the lack of financial recourses.
3
The report on attitides of Polish judges towards discrimination issues is available on
http://ptpa.org.pl/public/files/Prawo%20antydyskryminacyjne%20w%20praktyce%20s%C4%85dowej(1).pdf
4. Same – sex families. Legal aspects.
Legal institutionalization of same-sex partnerships
In January 2013 the Polish Parliament after an extremely hostile and homophobic
discussion rejected three proposal of laws on registered partnerships (including the
one elaborated by ruling party Civic Platform which received a public support from
the Prime Minister). The law proposals contained only basic regulations for same-sex
partnerships as property and inheritance rights and obligation for mutual support.
The draft laws did not include any rights to marry or adoption rights.
After the rejection the two opposition parties (Palikot’s Movement and Democratic
Left Alliance) submitted once again two drafts of law on register partnership. Until
today the Speaker of the Sejm has not directed the proposals to the legislative process.
This was a subject of a number of protests and demonstration organized by LGBTI
community and supporters.
Problems that same-sex couples encounter in practice.
With regard to the free movement of homosexual people, it has to be underlined that
the problem of Polish citizens with obtaining marital status certificates – required by
foreign authorities to approve the entering into a same-sex registered partnership or
same-sex marriage – remains unsolved. Polish administration (civil status offices)
denies issuance of civil status certificates for the applicants (Polish citizens) who
want to enter same-sex registered partnership or same-sex marriage abroad. The
reason of the denial is that the official form of the application to receive the certificate
contains the requirement of providing the name and the surname of the future
spouse. The Polish administration denies the certificate in cases when the future
spouse is going to be of the same sex. The administration argues that according to the
Polish Constitution (art. 18) the marriage is constituted only between a man and a
woman. The Minister of the Interior (Minister Spraw Wewnętrznych) announced his
plans to introduce gender neutral documents that could serve as certificates of a
marital status required by foreign authorities but until today no significant
developments in this respect have taken place.
In 2013, one may observe a slight increase in the number of family reunification and
asylum cases involving LGBTI people.
Partners staying in homosexual partnerships registered abroad encounter problems
in many spheres of life in Poland. Below three examples are given of such problems.
Helsinki Foundation for human rights has litigated two cases concerning refusal of
entry into Poland of a third-country national who were living in registered
partnerships (under UK law) with Polish citizens. In these cases the Polish Border
Guard did not apply provision of Directive 2004/38/EC on the right to move and
reside freely that states should facilitate entry and residence for the he partner with
whom the Union citizen has a durable relationship, duly attested. After judgments of
the administrative court in Warsaw that the Border Guard did not apply the provision
of the directive in a proper way, the Border Guard changed its practice and issue a 15
day visa to such a partner.
Another example of problems encountered by partners in partnerships registered
abroad is a refusal of Polish authorities to allow a third-country national to buy real
estate property in the city of Gdańsk (it is a border zone where permission to buy a
real estate property is still required). According to the Minister of Internal Affairs it
was not proven that the third country national has “sufficient links with Poland’ as
law requires. According to the authorities such links may be proven by marriage as it
is defined by the Polish Constitution (union between men and women) and not by
homosexual partnership. Such interpretation was given by the Polish authorities even
though the catalogue of situations that prove links with Poland is not exhaustive. The
Helsinki Foundation for Human Rights has underlined in it’s amicus curiae brief that
a blanket exclusion of persons living in a homosexual relationship from access to
certain rights constitutes discrimination. However, the administrative court in
Warsaw upheld the decision of the Minister of Internal Affairs and the case is now
pending before Supreme Administrative Court.
Another example, concerns two women in registered partnership in UK who bring
up a girl together and are both listed in British birth certificate as parents. Because
one parent is Polish, these women wanted Polish authorities to issue a Polish birth
certificate for a girl. Polish authorities refused to issue a certificate because the Polish
act of birth has separate place for “mother” and “father” and it would be contrary to
the Polish public order to issue a certificate in a case a child has both parents female.
The case is currently pending before Supreme Administrative Court.
5. Transgender rights in Poland
Gender recognition in Poland
It is important to note that even though the Polish legal system does not require a person
to undergo sterilization procedures nor genital surgery (this is due to the fact that
sterilization is illegal in Poland4 and may not be performed unless medically necessary)
in order to have their gender legally recognized (either as male or female), there is no
actual law on gender recognition. The process (regulated by High Court rulings and court
practice) itself requires a civil court case which leads to several complications, especially
with the fact that the parents of an adult person are involved in the process and may
sometimes delay the court decision on changing the gender marker.5
This has been recognized as a problem by the Polish Ombudsman in 2011 who decided to
discuss it further with the Polish NGOs to find a possible solution until a Gender
Recognition Bill is drafted.
The legal practice on the matter is also nontransparent and unequal. While both trans men
and trans women are expected to undergo a period of hormone therapy to “physically
resemble the gender they want to be assigned to”, trans men are forced to undergo chest
surgeries which is in deep violation of basic human rights, especially the right to physical
integrity. This problem was reported to the Ombudsman and the Ministry of Justice but
still remains a subject which is difficult to approach due to the lack of a Gender
Recognition Bill.
Proposals to challenge current gender recognition procedures
The Gender Accordance Act
In May 2012 a draft of the law (referred to in English as The Gender Accordance Act and as
Ustawa o uzgodnieniu płci in Polish) has been proposed to the Parliament by Anna
Grodzka, MP who, together with the Trans-Fuzja Foundation, prepared the proposal6. To
undergo gender recognition, a person would have to a have Polish citizenship; be over 18
or over 13 years of age (the latter requires an approval from their legal guardians or the
guardianship court), be unmarried.
4 This is due to tight prescriptions on sterilization generally in Polish law, in Article 156 of the Polish Criminal Code.
5 Some of the aspects of legal gender recognition have been analyzed and commented in recent publications, see:
Śledzińska-Simon, Anna, ed. Prawa osób transseksualnych. Rozwiązania modelowe a sytuacja w Polsce. Warszawa:
Wolters Kluwer, 2010 and Śledzińska-Simon, Anna, Sytuacja prawna osób transseksualnych w Polsce [in:] Dynarski,
Wiktor, Śmiszek, Krzysztof, ed. Sytuacja prawna osób transpłciowych w Polsce. Raport z badań i propozycje zmian.
Warszawa: Fundacja Trans-Fuzja i Polskie Towarzystwo Prawa Antydyskryminacyjnego, 2013. English version of the
latter can be accessed at:
http://transfuzja.org/en/artykuly/gender_recognition_in_poland/the_20092013_lgr_report.htm.
6 The English version of the draft law is available at:
http://transfuzja.org/en/artykuly/gender_recognition_in_poland/the_gender_accordance_act_draft.htm.
The applicant would also have to submit a statement that gender identity differs from
their legal gender and a statement from a healthcare professional confirming a durable
gender identity differing from the person's legal gender. The applicant would then have
to take part in a court hearing to finish the process
The draft also forbids irreversible medical interventions on intersex children and infants,
and creates a possibility for those children to undergo gender recognition upon reaching
the age of 13 years.
The current version of the draft has been shaped by the legislative process within the
Parliament (although it does differ much from the original version).
On December 3rd, the first reading of the GAA proposal took place in the Parliament. In
general, the reading went smoothly, with most of the parliamentary questions concerning
the actual medical definition of transsexuality and whether there are alternative
“treatment methods”. After the proposal was presented by Anna Grodzka and most of the
questions were answered, the Ministry of Justice representative informed the MPs that
the Ministry supports further work on the proposal, hoping to reach a consensus between
government's plans and the activist-driven proposal. Anna Grodzka informed the
Parliament that the Ministry of Health also supports further work on the draft, which – as
anticipated – translates also into a commitment towards further work on transgender
healthcare in general, especially the insurance restrictions towards access to transspecific healthcare.
Representatives of the Law and Justice (PiS) party have, however, requested the proposal
to be dropped by the Parliament completely. A vote on that request was scheduled for
December 6th.
On December 6th, by a vote of 198 MPs voting for dropping the proposal completely, 224
voting to commit to further work on it and 16 abstentions, the Polish Sejm green-lighted
further work on the GAA proposal.
Outline of government proposal for gender recognition
In late 2013 the government has presented its own outline of a gender recognition law7.
The outline creates a two-step gender recognition process, where a specialized
commission, aimed to assess a person's diagnosis, would be created. Unmarried status of
the applicant is required.
The government draft uses identity structures coming from the medical language and
refers to “transsexual identity”, instead of gender identity. The outline also introduces a
special ID document for persons in transition – those whose appearance differs from their
official data. What Trans-Fuzja Foundation hopes for is that when an actual gender
7 The Polish version of the outline is available at http://bip.kprm.gov.pl/kpr/form/r828,Zalozenia-do-projektuustawy-o-zmianie-ustawy-Kodeks-postepowania-cywilnego-usta.html.
recognition legislation is adopted, it would follow a human rights standard approach so
that “TRANScards” or similar documents would not be needed.
The government outline was also criticized for the drafting and consultation process.
Consultations were held mainly with sexologists, whose knowledge and practice still
follow procedures established in the 1980s, and no human rights organization has been
invited to partake in the process. The situation changed in the past 3 months, when civil
society was invited to pose comments to the draft outline, which has been reviewed and
updated.
MAIN CONCERNS AND THEIR DESCRIPTION
Even though transgender persons face a number of issues in different fields, the chapter
focuses on general discrimination (particularly seen from the perspective of establishing
the Anti-Discrimination Act in 2010), discrimination and issues linked to employment (as
Trans-Fuzja Foundation has reported many cases of individuals being victims either of
direct discrimination or the inefficient legal system) and health issues which touch both
the subject of healthcare in general and it's approach to trans people, as well as healthcare
related to gender reassignment and issues often labeled as specific for the transgender
population.
Discrimination
Transgender persons, particularly trans women, often face discrimination based on their
gender identity and/or gender expression. Cases reported to Trans-Fuzja Foundation
more often consider trans women as they are believed to be more visible in the Polish
society due to different conceptualization of masculinity and femininity. However there
have been also cases reported by trans men, most of them not being legally recognized as
male, who have been either discriminated on the basis of believed sexual orientation (i.e.
a heterosexual trans man was seen as a lesbian and therefore discriminated against) or
sexually harassed in the work place.
About 25% of transgender people have had experiences with discrimination based on
their transgender status8, more than 70% decided not to come out as transgender in the
workplace (neither pre- nor post transition), claiming that it was a necessary step or their
need. These numbers indicate that in general the work place cannot be considered a safe
environment for transgender people.
8 All data, unless otherwise specified, cited from the research report Situation of LGBT Persons in Poland. 2010 and
2011 report, ed. M. Makuchowska and M. Pawlęga, 2012. Available at
http://www.kph.org.pl/publikacje/Raport_badania_LGBT_EN_net.pdf.
Discrimination of trans people in Poland (in any context) has been a major subject of
concerns for all transgender and LGBT organizations since Polish law does not cover nor
gender identity nor gender expression in any kind of law. The new Anti-Discrimination
Act, even after a dramatic lobbying process, does not include those features as possible
discrimination grounds. This leaves transgender people still unrecognized by the legal
system and therefore they become more prone to discrimination.
It needs to be pointed out that the Republic of Poland recognizes their citizens on the basis
of their legal status. This means that a trans person is able to enjoy all their rights as a
gendered person only when they have been recognized in the preferred gender, i.e. a trans
woman who has been discriminated against while still being recognized as male, cannot
point out that she was discriminated on the basis of sex, because her legal status does not
match her identity and/or expression.
Employment
Major issues are being faced by transgender people everyday within the field of
employment. In fact, a number of transgender persons faces unemployment which is
caused by numerous discriminatory actions often justified by the lack of a trans-inclusive
law and/or discrimination faced by trans people in education or stigmatization in their
families.
The causes of transgender unemployment differ in the whole country but a couple of
points can be raised at this point:
– A number of trans people fail to finish their education on a level that would prepare
them for the job market. This is often caused either by bullying, family or personal issues
which force transgender individuals to drop out from schools.
– Transgender people are often discouraged during job interviews, especially on the
grounds of their gender expression or their legal status (i.e. passing as a woman, but not
being yet recognized legally as female). There are no legal procedures that would prevent
those kinds of situations.
– After leaving the workplace (for various reasons) transgender people who went
through legal gender recognition often receive employment proving documents stating
their previous legal status, both the name and gender, which definitely closes the route to
gain a job fitting their qualifications. This problems concerns especially those who do not
want to disclose their transgender status.
Another problem within the employment field is harassment which has been reported by
both trans women and men. Verbal abuse coming from co-workers constitutes about 25%
of all discrimination incidents, while almost 18% of all verbal harassment is committed
by managers. 14% of transgender employees face exclusion in their work place and 10%
have indicated (among other issues) that they have been subjected ot sexual harassment
in the work place. This is an issue that is difficult to approach mostly due to the fact that
transgender people are not only afraid of losing their jobs when reporting the case but
also are not educated on their rights as employees or legal measures that can be taken
after such an incident occurs. It is also crucial to note that in most reported cases
harassment (also sexual) in the workplace starts after a person decides to come out as a
transgender person, which would underline how transgender is viewed within some
spaces.
The Gender Accordance Act proposal – submitted to the Parliament by Anna Grodzka, MP
– introduces an obligation for employers an institutions to issue documents proving one's
education or professional experience for persons who have gone through the gender
recognition process.
Health
The highly gendered healthcare system in Poland is known for it's non-trans-inclusive
services. Transgender women and men who went through legal gender recognition face
problems registering to a doctor who specializes in themes seen as either male or female
problems. There have been reports of trans women not being able to register for a visit to
an andrologist, as well as trans men having the same issues with gynaecologists.
Trans people who were, however, able to visit their chosen doctor often face medical
professionals who are not only uneducated on trans issues, but also prejudiced and
therefore not being able to provide trans people with needed health assistance.
A typical issue that trans people face in the healthcare system is the lack of state funding
for gender reassignment procedures. This not only means not being able to afford
surgeries but also problems with being able to pay for hormone therapy (extremely pricy
for trans women), which every trans person needs to undergo before being legally
recognized. This is also linked with problems faced in pharmacies, trans people
(especially trans women) who were not yet recognized legally in their preferred gender
have reported a few cases of pharmacists denying a person state-approved
reimbursement, justifying their actions by the fact that a male cannot buy female
hormones at a reduced price.
Trans-Fuzja Foundation is currently preparing a survey, of which a special report will be
created, to assess the level of discrimination within the healthcare system.
6. Homophobia and transphobia at schools
Formal education system
There are no policies and standards which would ensure equal treatment and safety of
LGBT persons in Polish schools. Many schools even deny the existence of LGBT students.
Students who complain about homophobia at school often turn to KPH. They experience
homophobic behavior, not only from other students but also from teachers, educators,
and especially priests, nuns and catechists conducting religion lessons. The teachers who
admitted being non-heterosexual become themselves victims of discrimination.
There is no political climate conducive to the implementation of relevant equality policies
in the educational system. The Ministry of Education is unwilling to cooperate with civil
society organizations representing LGBT community. Although many attempts of contact
had been undertaken by KPH – no cooperation has been lunched so far.
There are no legal provisions that mention sexual orientation or gender identity as a
possible discrimination ground in the formal education system. The so called ‘Equality
Act’ of 2011 9 does not protect LGBT persons in access to education.
According to KPHs (Campaing Against Homophobia) studies10 sexual orientation
continues to be a taboo in schools. LGBT pupils and students are not provided with
necessary information, protection and support to enable them to live in accordance with
their sexual orientation. Sexual orientation or homophobia as a phenomenon are not
discussed or counteracted – more than 60% of students admit that the subject is not
brought up by teachers during classes. In the same time, in 3,5% of all cases of verbal
homophobic violence the offenders where teachers, whereas 23,5% of cases of verbal
violence happen at school. The situation is even worse when it comes to physical violence
– almost 40% of homophobic attacks take place at learning facilities. 76% of students
admit that homophobic language is present in their school, 26% have noticed physical
bullying such as kicking, spiting, pulling. Because of that only 12,6% of students are
completely ‘out’ in their school environment, the rest feels the need to conceal their sexual
orientation in some way.
There is no data on suicide of young people due to homophobic bulling, but studies show
that LGB teens have suicidal thoughts ca. 5 times more often than their straight peers
(accordingly 62,7% and 12,3%).
Information about sexual orientation is to some extent present in the school curricula.
However, it is not provided in an objective and respectful manner. Neither does the school
curriculum contain references to gender identity, yet gender is seen exclusively in the
Ustawa z dnia 3 grudnia 2010 r. o wdrozeniu niektorych przepisow Unii Europejskiej w zakresie rownego
traktowania, Dz.U. 2010 nr 254 poz. 1700
10 Situation of LGBT persons In Poland 2010-2011 report, ed. Miroslawa Makuchowska, Michal Pawlega,
2012, Kampania Przeciw Homofobii; Equality Lesson, Attitudes and Needs of School Staff and Youth
Towards Homophobia in School, ed. J. Swierszcz, 2012, Kampania Przeciw Homofobii.
9
context of femininity or masculinity. The curriculum does not seem to feature elements
educating about transgenderism in the manner compliant with the current standards of
human rights.
At the same time teachers admit that they lack competence and skills to deal with
homophobic bulling at schools. Half of them stated that more trainings on the subject
would help them address homophobic incidents at schools properly. The documents
concerning the standards for teacher training do not require that teachers be
appropriately qualified to conduct anti-discrimination education or combat
discrimination in school. Also more than half of the teachers admit that the subject of
homosexuality is not present enough in the school curricula.
7. Health issues
Polish law does not provide adequate protection for LGBT persons in access to healthcare.
The so called ‘Equality Act’ of 2011 does not protect LGBT persons in access to healthcare.
Nor do national health plans, policies or other documents regulating healthcare system
include SOGI (sexual orientation and gender identity) issues.
Data gathered by KPH shows that 1 in 10 LGB patients has encountered discriminatory
treatment form health care providers. The Fundamental Rights Agency survey shows
that in Poland 14% of lesbians, 9% of gay man, 11% of bisexual women, 9% of bisexual
man and 23% of transgender patients where discriminated against by health
professionals within 12 months prior to the survey.
This situation is due to doctors low knowledge of SOGI issues which results in stereotypes
and prejudice.
According to data gathered in one of the Medical Universities in Poznan 22% of last year
medicine students consider homosexuality a disease comparing to 24% of first year
students. This shows complete lack of basic knowledge of human sexuality among
doctors.
When it comes to psychological health of LGBT persons the situation also looks alarming.
44% of LGB adults claim that they ‘feel lonely although they do not want to be’ in
comparison to 18% of adults in general population. 13% of LGBT adults admit having
suicidal thought throughout last couple of months. The situation is far more drastic among
LGB youth - LGB teens have suicidal thoughts ca. 5 times more often than their straight
peers (accordingly 62,7% and 12,3%).
Because of the medicalization of transsexuality and legal gender recognition process ¼ of
trans* persons experience discriminatory treatment in access to health services. Gender
recognition therapy is not being refunded by the State on any stage but according to the
jurisprudence ‘irreversible changes in the body’ are necessary to obtain a favorable
gender recognition judgment. This is not only violating basic human rights to bodily
integrity, but also forces t* persons to bear costs of medical surgeries like mastectomy.
5,5% of t* persons undergoing gender recognition treatment feel forced to undergo
medical procedures that they otherwise would not go through.