LGBTI rights in Poland Measures to combat discrimination and violence on grounds of sexual orientation, gender identity and sex characteristics EDITED BY PIOTR GODZISZ & PAWEŁ KNUT 2 Executive summary As for the Right to Life, Security and Protection from Violence, neither the Criminal Code nor any other law explicitly requires penalty enhancements for crimes motivated by anti-LGBTI bias. Hate speech based on SOGIESC still has not been recognized in Polish legal framework. Data and evidence gathered by the NGOs clearly shows that the current law does not adequately address the problem of LGBTI-phobia. Even though, some official figures are published, they contain only a handful of cases per year. Police, prosecution services and courts use different methods of recording of hate crimes, resulting in differences in numbers and cases ‘disappearing’ on the way through the criminal justice system. Moreover, most police officers and some prosecutors have received only basic hate crime training. Some training on anti-LGBTI hate crime are still provided by NGOs, however on an irregular basis. It is also worrying that there is no obligation to conduct the individual needs assessment of victims of hate crime or victims who are vulnerable because of their SOGIESC. Gathered information proves that the Victims’ Rights Directive’s guarantees for hate crime victims have not been implemented. There are also no systematic solutions addressing the situation of LGBTI people in prisons. Actions to improve safety and well-being of LGBTI prisoners are taken on an individual basis and do not have systemic character. Also, there have been no campaigns raising awareness of anti-LGBTI hate crimes organized by public authorities. As for the Freedom of Association, organizations acting for the benefit of LGBT persons can register on an equal footing with other organizations. Theoretically, the legal provisions also allow public financing of activities of all NGOs without discrimination. However, since the election in 2015 and formation of Law and Justice government, the situation deteriorated, and the distribution of most public funds is now controlled directly by the government authorities. What is also worrying is the current approach of the authorities towards cooperation with LGBT NGOs. Until 2015 LGBT organizations were sometimes involved in the development and implementation of public policies, including consultations on legal measures that could have an impact on the human rights of LGBT persons. Since the general election in 2015, this involvement has come to an end. Also the use of the instrument of public consultations was significantly limited after 2015. On the national level only the Commissioner the Human Rights and liberal opposition parties are open to collaboration. More comprehensive and fruitful cooperation between LGBT NGOs and authorities exists on the local level, in cases when the local authorities are not connected directly or indirectly with Law and Justice party. LGBT organizations are also in a permanent contact with media representatives dedicated to LGBTI issues. Information on the activities of these organizations appears regularly in the mainstream press in the country. As for LGBT human rights defenders, they do not receive any special protection from the state against hostility and aggression. They can only rely on general provisions contained in acts of national law. In practice, state involvement in the protection of LGBT activists is focused mainly on securing equality marches. 3 As for the Freedom of Expression and Peaceful Assembly, there are no special provisions regarding protection of these freedoms in reference to LGBT persons. It is possible to seek, distribute and receive impart information on subjects dealing with sexual orientation, gender identity and gender expression issues. However, this flow of information is stimulated mostly by the LGBTI community and NGOs acting on benefit of this community and does not receive any substantial support from the state. Since 2015 there was no campaign in public media on LGBTI human rights. The freedom of expression in Polish legal system is limited by both civil and criminal law. The shape of these limitations stays in line with the current international standards. Nevertheless, only recently some of these provisions (for instance prohibiting ‘slandering Polish state symbols’) started being used in arbitrary way against LGBT activists which can result in causing ‘chilling effect’. As for the constitutional freedom of peaceful assembly, this can be exercised by all people with full legal capacity residing in Poland. There are no special provisions securing exercising of this freedom in the context of minorities or groups at risk of discrimination. However, new restrictions regarding colliding assemblies and ‘cyclical assemblies’ adopted in 2017 can potentially restrict individuals’ ability to hold counter-demonstrations and spontaneous demonstrations. The protection of peaceful demonstrations by the Police in favour of the human rights of LGBTI persons has to be assessed positively. However, the Police is still criticized by the NGOs for not intervening when the actions of counter- demonstrators are not a direct physical threat, but take a form of hate speech, slandering or hateful banners. As for the Right for Respect of Personal and Family life, persons living in same-sex relationships - in theory - are legally considered as cohabiting in the context of criminal law. In practice, they are not always informed of the rights arising from obtaining this status (for instance the right to refuse to testify against their partner during the trial). Legal gender recognition procedure is available; however it is far from being quick, transparent and accessible. Current procedure does not rely on self-determination and requires psychiatric diagnosis. Irreversible sterilization is not required for gender recognition procedure. Also a person who has completed a legal gender procedure can marry a person of the opposite gender (to their new legal gender). The current situation proves that the legal gender recognition requires urgent regulation in a form of legislation. Even though, the act simplifying the gender recognition process was adopted by the Parliament it was vetoed by the President in 2015. As a matter of principle, Polish legal system does not regulate the rights and obligations of unmarried couples, including same-sex unions. While rights of same-sex partners have been asserted in some court cases, the legal protection of same sex-partners still remains full of holes. Also, Polish law does not provide the institution of registered partnerships. Moreover, national legislation does not recognize such partnerships even when they were concluded abroad. Current socio- legal situation of same-sex couples proves that it also requires urgent regulation in a form of legislation. The proposals to legally recognize same-sex unions have been submitted in the Parliament for the past 15 years, to no avail. As for the parenting issues, it needs to be 4 mentioned that negative opinions on non-heterosexual sexual orientation or transgender identity of the parent are sometimes used in courts as an argument against custody over a child. Only the married couples and single persons have the right to adopt a child. In practice marriages are preferred. Theoretically, lesbian couples and single women have access to medically assisted procreation. In practice, since the adoption of a new legislation in 2015, IVF clinics has been refusing the right to use their services for lesbian couples and single women. As for the Employment, this area seems to be the only one where the protection against discrimination based on sexual orientation and gender identity is legally ensured. In case of sexual orientation this protection can be interpreted directly from legal provisions. In case of gender identity this protection is indirect (unequal treatment based on gender identity is treated in the jurisprudence as a discrimination on the grounds of sex). However, what weakens this protection is the fact, that specific LGBT groups (lesbian and bisexual women, persons of color or ethnic minority backgrounds or persons with disabilities) are not protected in a special way due to the greater risk of experiencing discrimination. Even though the legal framework protecting against discrimination of LGBT employees should be assessed positively, the research conducted by the NGOs show that employees rarely take legal action on the grounds of being discriminated against in the area of employment. Among other factors, the fear of disclosing sexual orientation or gender identity plays a significant role. As for the Education, discrimination and violence based on sexual orientation, gender identity and gender expression are widespread in Polish schools. There have been cases of suicides of children who were victims of anti-LGBT bullying. Few LGBT students and teachers come out due to fear of becoming targeted. Legislative and policy solutions aimed at preventing and responding to homophobia and transphobia in education are lacking. There is also no government leadership to make schools and universities safe for LGBT students and staff. Moreover, anti-discrimination training is absent from standard specialized professional education for teachers. Such training or support and teaching aids are provided occasionally by NGOs. Also, school policies and action plans rarely consider equality and safety of LGBT students and