Gay rights have become a flashpoint issue in Poland in recent years under the governing right-wing Prawo i Sprawiedliwość or Law and Justice (PiS) party, which campaigns against what it calls “LGBT ideology”, likening the promotion of gay rights to a form of communism.
In October 2021, the Polish Constitutional Tribunal, with support from Hungary, challenged several provisions of the European Union Treaty. The Polish Tribunal has stated that its own constitution supersedes the EU articles, which caused much controversy domestically and abroad.
Polish Prime Minister Mateusz Morawiecki has accused the EU of blackmail in a heated debate with European Commission chief Ursula von der Leyen over the rule of law.
Ursula von der Leyen, who is deeply concerned, does not want to blackmail Warsaw over fears of “Polexit”, but has good reason to show that the European Union can not agree with the way Poland is organising its country and treating those people who do not fit their ‘normal’.
Mrs von der Leyen, reacting to a top Polish court ruling that rejected key parts of EU law, said she would act to prevent Poland from undermining EU values. No way, the EU should allow EU countries to erase those important rights of freedom, which are included in European Law.
The row has come to a head over an unprecedented and controversial ruling by Poland’s Constitutional Tribunal that in effect rejects the core principle that EU law has primacy over national legislation.
Poland’s right-wing nationalist government has increasingly been at odds on issues ranging from LGBT rights to judicial independence. According to ILGA-Europe‘s 2021 report, the status of LGBTQ rights in Poland is the worst among European Union countries. Azerbaijan was ranked as the worst for LGBTI equality, scoring just 5%, closely followed by Russia, Armenia and Turkey.
The “LGBT-free zones” and other discriminatory measures, which were brought to the attention of the European Commission in September, did worry a lot of European citizens as well. There is the breach of the European Council Directive (2000/78/EC), establishing a general framework for equal treatment in employment and occupation, as well as the Charter of Fundamental Rights Article 15 on Freedom to choose an occupation and right to engage in work, and Article 21 on non-discrimination.
The EU commission could already receive many individual complaints by LGBTI persons, sharing their fears for employment, health and life and their stories of discrimination in Poland. Also, several international television stations got warned about the difficult situation in Poland for people with other feelings than those right-wing populists. We, in Belgium, could already witness several interviews on television, but also see how police officers maltreated homos.
Though homosexuality its legality was confirmed in 1932, the last five years we heard and saw how right-wing fractions do everything to convince the Polish citizens that such a ‘disease’ should be combatted, and the country should do everything it can to exterminate it.
LGBTI people are very worried about what the future may bring for them in Poland, Hungary and in the Czech Republic. Although there is no clear individual court case claiming discrimination in recruitment or employment at this point, the analysis shows clearly how the principles of Directive 2000/78/EC and the Charter of Fundamental Rights are being violated.
Being the sixth-largest economy in the European Union by nominal GDP and the fifth-largest by GDP (PPP) LGBTI people might have concerns about the strength with which European Union decision-makers will be prepared to put Poland in its place and demand that all the rights that citizens of the European Union should be able to expect, will also be respected in Poland.
Poland is in the top twenty countries with the best-rated e-administration in the world, but this development of IT services gives also advancement to the government to search via the internet for LGBTI people and organisations so that they can persecute them more easily and for limiting the free press.
Hundreds of complaints have been sent to EC as fundamental rights are being violated on a daily basis. It’s high time for both EC and the Council to act – the citizens are calling for the immediate trigger of infringement procedure and to finally act under the Article 7(1) TEU procedure. Several people have already been arrested and placed in detention, where they were brutally interrogated, inhumanely treated and some were even tortured. In our Union, we can not allow such breaches of fundamental rights as set out in the Treaty and the Charter of Fundamental Rights, including mistreatment, the right to legal help, to inform a close person, to access to medical help, and the right to information.
LGBT advocates have appealed to human rights norms that transcend national boundaries, such as the appeal to the European Commission to censure Poland for breaching its human rights obligations. As Bartosz Staszewski, of the Lublin Pride Association said:
“We cannot count on our government, we cannot count on our president, the only thing we can count on is the European Union.”
As European citizens, we sincerely hope that the MP’s of our Union shall take stringent measures and come up for the protection of all, thus also LGBT, inhabitants of the EU.
Given Poland’s sustained attack on the human rights of LGBT people, as well as women and others, the European Commission can and should do more. Initiating an infringement procedure would send a strong message that these kinds of policies have no place in the EU, could press the Polish government to change route, and would offer a chance to the EU Court of Justice to reaffirm states’ obligations to protect, not neglect, their LGBT citizens.
In Poland human rights and tenets of democracy are under threat, including the independence of the judiciary and free press. In this assault, LGBT rights are seen as a soft target. Standing up for the rights of LGBT people in Poland, the EU would be moving not only to protect the rights of a vulnerable minority, but human rights writ large.
The head of the European Commission told the European Parliament the situation had to be resolved but she was adamant:
“This ruling calls into question the foundations of the European Union. It is a direct challenge to the unity of the European legal order.”
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