EU / Poland: LGBT + rights and abortion left behind

For the past three years, the ultra-conservative Polish government’s anti-democratic reforms and repeated attacks against the independence of the country’s judicial institutions have triggered a strong reaction on the part of the European Union (EU). However, while political and media attention has so far focused on the risks posed to the judiciary, a new report released today by FIDH and PSAL analyses how these attacks also have extremely concrete consequences on women’s sexual and reproductive rights and LGBT+ persons’ rights. Our organisations are therefore calling on the European institutions to finally include these abuses in ongoing discussions.

For the first time in history, the European Commission made use of the Article 7 procedure in December 2017, triggering a process of discussions, which could potentially lead to sanctions, against Poland, to convince the government to revert to complying with the democratic principles of the EU. It voiced deep concerns over the attacks perpetrated against the separation of powers and the independence of the judiciary, which has been the subject of a wide counter-reform and unprecedented purge since the fall of the communist regime.

However, under the pretence of promoting Catholic and traditional values, changes triggered for the past 3 years by the Law and Justice Party (PiS), far from being confined to the country’s high courts, have had direct impacts on access to sexual and reproductive rights and LGBT+ persons’ rights, under a broader context of liberated hate speech, stigmatising discourse against minorities, and harassment of human rights NGOs.

Remnants of the right to abortion continuously challenged

During the communist era, 500,000 Polish women had legal recourse to abortion every year, whereas less than 1,000 have recourse to it today according to official statistics. In the meantime, the Family Planning Act was passed in 1993 under pressure from the Polish Catholic Church, explicitly recognising a "right to life" from conception, and limiting the right to abortion to three exceptions (1). This right to a conditional right to abortion can only be obtained after lengthy and restrictive administrative and medical procedures, often rendering access to the procedure impossible.

Any person, from the medical profession or not, assisting a woman in undergoing an abortion not covered by the three exceptions, risks three years in prison. More and more hospitals (not just doctors) are invoking the so-called "conscientious objection" to refuse providing any abortion services within their walls. In some areas of the country, accessing abortion services is outright impossible.

Around 150,000 Polish women are alleged to undergo an illegal abortion each year in the country, and 200 000 abroad. Shortly after their election, the conservatives tried to pass a law banning and criminalising abortion, including for medical reasons (when the foetus is severely impaired), which now account for 98% of abortions practiced in Poland. While mass demonstrations (such as the "Black Protest") temporarily caused the government to backtrack, demonstrators were sometimes threatened with disciplinary action and intimidation.

What remains of the right to abortion is continuously endangered and put into question, as testifies the "Stop Abortion" bill in 2018, which would have rendered abortion almost impossible to obtain. Submitted to Parliament early 2018, its adoption was prevented by MPs last minute. Finally, as more and more pharmacists invoke the "conscientious objection" to refuse to sell contraceptives, a 2017 law now requires a medical prescription to obtain a "morning-after pill," previously available over the counter in pharmacies. In September 2018, the government announced that it would start tracking down women seeking to obtain such emergency contraception by going on online forums and websites selling these pills from abroad.

LGBT+ persons silenced

In the 2000s, the fight against discrimination had progressed in Poland, which had benefited LGBT+ persons, even imperfectly. For example, the Polish labour law now prohibits discrimination on grounds of sexual orientation. However, this is an exception in Polish law. For example, physical or verbal attacks because of one’s sexual orientation or gender identity are not recognised in the law as "hate crimes." The qualification of the offence is left to the discretion of the judge, whereas attacks on because of one’s race, nationality, or religion are criminalised as hate crimes in the law. In addition, there is still no recognition of civil marriage for same-sex individuals, and therefore no equality between heterosexual and homosexual couples.

Although gender-reaffirming procedures are still allowed, they remain insufficiently reimbursed and are increasingly difficult to obtain from an administrative viewpoint. And attempts to change the law, since 2012, by Poland’s first transgender MP, Anna Grodzka, were ultimately struck down by presidential veto in October 2015.

Since 2015, discourse from public officials has become increasingly aggressive towards LGBT+ persons. For example, the Minister of Defence described the gay pride as a "parade of sodomites," while the Ministry of Interior considers that painting the Polish flag in rainbow colours is "a criminal act." Some gay prides are now banned by regional authorities, while homo/bi/transphobic attacks have multiplied over the past few years and remain largely underestimated. Polish authorities are sinking into denial, counting for example ... 0 homophobic violence in 2015. In this context, NGOs advocating for LGBT+ persons’ rights remain silent and dare not claim any new rights.

Courts influenced by the executive, associations threatened

Over the past three years, the growing control of the Polish Executive over the judiciary has gone hand-in-hand with public and political attacks against the right to abortion, reproductive health, and the rights of LGBT+ persons. Certain categories of persons, who were already stigmatised, are both subjected to reactionary and vehement public discourse and to courts increasingly controlled by the Executive.

In parallel, human rights organisations and remaining independent institutions, such as the Supreme Court or the Polish Ombudsman, are subject to slander, verbal attacks or obstacles in their work. The EU cannot turn a blind eye or tolerate the serious human rights abuses occurring towards women and LGBT+ persons in a member country. It is high time for the Council of the EU to take into account the retrogressions and attacks endured by women and LGBT+ persons as part of its review of the situation in Poland, under the Article 7 procedure.

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