Poland: Rule of Law Erosion Harms Women, LGBT People

(Budapest) – The Polish government’s ongoing attacks on the rule of law are harming the rights of women and LGBT people and require stronger action from the European Union, Human Rights Watch have said.

Since the Law and Justice (PiS) party came to power in Poland in 2015, the government has persistently attacked the rights of women and LGBT people in the context of its broader attacks on the rule of law. The government has deliberately undermined the independence of the judiciary and media freedom and sought to silence independent civil society groups, activists, and those who protest against its policies, including through the courts.

“The rule of law crisis in Poland undermines democratic institutions, seriously damaging protections for people’s rights, including women and LGBT people,” said Lydia Gall, senior Europe and Central Asia researcher at Human Rights Watch. “The European Union needs to get serious about its responsibility to the people of Poland and step up its efforts to arrest the Polish government’s devastating rule of law crackdown.”

Since 2020, ongoing Human Rights Watch research shows the harmful consequences of the government’s undermining of the rule of law in Poland, and how the political hijacking of courts and use of the justice system to impede civil society have undermined the rights of women, girls, and LGBT people. Human Rights Watch had not received any response to its letters to the Ministry of Justice and the Ministry of the Interior in November 2022 setting out our concerns and seeking comment. 

Human Rights Watch interviewed four LGBT activists and organizations, and eleven representatives of women’s rights organizations in Poland as well as six LGBT people who have personally experienced the harmful effects of the government-led anti-LGBT campaign.

Hostile attitudes toward LGBT people found full expression in 2019 when regions and municipalities began to declare themselves “LGBT Ideology Free” or joined a government-supported Family Charter, calling for the exclusion of LGBT people from Polish society. More than 90 regional and municipal authorities have now declared themselves “LGBT ideology free” or signed the charter.

Even though Poland’s law on abortion was already among the most restrictive in Europe, the government used a politically compromised court in October 2020 to effectively ban access to legal abortions, forcing many women and girls to go abroad to terminate pregnancies.

In October, the group Abortion Without Borders reported that between October 2021 and October 2022, requests for help from women and girls in Poland accessing abortion skyrocketed. Activists described the initial devastation and desperation of women and girls who said they might now be forced to carry unwanted pregnancies to term. Activists in many cases managed to assist women terminating their pregnancies, often under difficult circumstances, including to travel abroad.

At least five women are known to have died after doctors did not terminate their pregnancies despite complications that put their health and lives at risk.

In the first known prosecution in Europe of an abortion activist for providing pills for medication abortion, prosecutors have charged Justyna Wydrzyńska of the Abortion Dream Team with assisting someone to have an abortion and illegally “marketing” medication without authorization. Hearings in her case have been postponed to January 2023.

Since Law and Justice came into power in Poland, LGBT activists have faced pressure and interference from the authorities over their peaceful activism, including arrests and criminal prosecutions, some under blasphemy laws. LGBT activists also reported the use by local authorities of what is known as Strategic Lawsuits Against Public Participation (“SLAPP”) lawsuits to interfere with, and silence their work.

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In addition to undermining the independent functioning of civil society, a clear rule of law violation, these measures have helped contribute to a hostile climate for LGBT people and activism in Poland.

Bart Staszewski, a leading Polish LGBT activist, told Human Rights Watch in June 2021 that he repeatedly reported threats against him, including death threats, to the police but that no serious steps had been taken to investigate. The threats followed the “Atlas of Hate” campaign, founded by other activists, that included an interactive map delineating the LGBT Ideology Free zones in Poland, and a related photo project called “Zones” that Staszewski undertook.

The misuse of Poland’s Constitutional Tribunal to further the government’s political agenda at the expense of rights has not stopped with the abortion ban, Human Rights Watch said. The government asked the tribunal in 2020 and 2021 to rule on whether the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention) and the European Convention on Human Rights (ECHR), which protects rights in Council of Europe member states, are compatible with the Polish constitution, in an effort to justify withdrawing from the former and ignoring binding rulings from the latter. The tribunal in March ruled the ECHR partially incompatible with the Polish constitution.

EU institutions have a duty to hold Poland to account for its dismal rule of law record that has harmed the lives of women, girls, and LGBT people, Human Rights Watch said. Poland should ensure access to safe and legal abortion, and cease attacks on and prosecutions of LGBT and women’s rights activists.

The European Parliament has spoken out against Poland’s decision to ban abortion and its announcement to withdraw from the Istanbul Convention. The Commission put funds on hold in September 2021 to five regions unless they abandoned anti-LGBT declarations, which resulted in four regions abandoning the declarations. In July 2021, the Commission took the first step of a legal infringement procedure against Poland because of the impact of the so-called ‘LGBT-ideology free zones’ resolutions. However, the EU Commission and EU member states have failed to address the implications of rule of law backsliding on women’s rights. European Commissioner for Equality criticised the Constitutional Tribunal ruling on abortion in November 2021 but said the EU had no authority to act on reproductive rights.

The EU Commission should trigger infringement proceedings or expand existing infringements to address the erosion of the rule of law that put women’s rights and the rights of LGBT people at risk. It should also issue an update to the December 2017 Reasoned Proposal, which initiated scrutiny under the Article 7 procedure, the EU-treaty-based mechanism dealing with EU states that put democratic ideals at risk, to extend EU scrutiny to developments since December 2017, including the use of a compromised Constitutional Tribunal to undermine women’s rights and laws and policies that undermine EU values such as nondiscrimination and tolerance.

European Commissioners should publicly condemn attacks on and judicial harassment against women’s rights and LGBT rights activists and organizations in Poland and the government’s support for or failure to denounce such attacks as violations of the EU values linked to undermining the rule of law.

The EU Council should move its scrutiny forward under Article 7 over the risk the Polish government’s actions pose to EU values, by adopting specific rule-of-law recommendations and holding a vote to determine there is a clear risk of a serious breach of EU values in Poland. Sweden, which will hold the rotating presidency of the Council of the EU starting in January 2023 for six months, should lead those efforts.

“EU institutions should move the Article 7 process forward and use its legal enforcement powers to protect the rights of the people affected by Poland’s attack on the rule of law,” Gall said. “In an EU member state in 2022, women shouldn’t have to face being denied abortion, LGBT people shouldn’t face hostility for who they are, and neither should risk punishment when they stand up for their rights.”