UPR Sexual Rights Database

National Report:
Para 85) The prohibition of discrimination in political, social and economic life on all grounds is part of the Polish legal system enshrined in Article 32 (2) of the Constitution. The Polish legal system, considered holistically, safeguards broad protection of the principle of equal treatment on many levels.

Para 86) Protection against discrimination should be considered in the first place in the context of protection of personal rights safeguarded by civil law. In the current legal status quo, this matter is governed by Article 23 of the Civil Code. It defines personal rights by providing an open-ended list of designations including reputation, freedom of conscience, name and image.

Para 87) The aforementioned provisions imply that protection of personal rights is comprehensive as it may be exercised in many ways using diverse remedies. It may be financial or non-financial in nature.

Para 88) Further to the foregoing, it should be noted that the applicable legislation offers comprehensive protection of any person whose personal rights have been violated or put at risk. This includes two types of non-financial claims: to cease and desist, and to take measures necessary to eliminate the violation of personal rights. Furthermore, it provides that financial protection as compensation may be adjudicated in favour of the victim or a charity in each case of violation of (or risk to) personal rights, as well as damages where a financial loss is incurred due to the violation of personal rights.

Para 89) According to Article 11.3 of the LC, any discrimination in employment, including on grounds of sexual orientation, either direct or indirect, is prohibited. Employees have equal rights for equal performance of the same obligations (recommendation 70). The provisions of the LC concerning compensation for a violation of the principle of equal treatment in employment apply in the event of damage caused by discrimination on grounds of sexual orientation. The Act of 3 December 2010 implementing certain EU legislation on equal treatment prohibits discrimination (among other things on grounds of sexual orientation) against individuals who work under civil law contracts.

Para 90) Protection against discrimination is safeguarded by the Act on Promotion of Employment and Labour Market Institutions. The Act on Promotion of Employment and Labour Market Institutions provides for criminal liability in the event of violation of the principle of equal treatment. Certain EU legislation on equal treatment applies in proceedings involving violation of the principle of equal treatment.

Para 91) The National Labour Inspectorate takes three types of actions to enforce the legislation on equal treatment in employment: prevention, advisory, and monitoring of employers accused of discriminatory practice. Criminal law and labour law, as well as a range of specific statutes, include safeguards of the prohibition of discrimination.

Stakeholder Summary:
Para 6) Joint Submission 5 (JS5), Polish Council of Youth Organizations (PROM) and AI expressed concern about the significant reduction of the budget for the Office of the Human Rights Commissioner (Office of the Commissioner). PROM indicated that the budget cut posed a serious risk of a number of adverse consequences and was against recommendations 90.32, 90.34 and 90.35. JS5 and Joint Submission 6 (JS6) highlighted that the main argument for cutting its budget was the fact that it carried out anti-discrimination tasks, including gender equality and LGBT rights, and that the Commissioner for Human Rights had regularly been attacked by right-wing parties, including the ruling party.

Para 11) AI, Fundacia Trans-Fuzia (TF), JS5, and the European Commission against Racism and Intolerance of the Council of Europe (CoE-ECRI) expressed concern that LGBTI persons and persons with disabilities had not been awarded greater protection in Poland’s anti-discrimination law

Para 12) JS5 indicated that the Equal Treatment Act lacked holistic approach to the issue of discrimination and did not treat all marginalised groups equally. This resulted in hierarchy of protection, where the least protected grounds were sexual orientation, age, disability and religion. Prohibition of discrimination based on sexual orientation had been implemented only in relation to the Labour Code, and to a limited extent, to the Equal Treatment Act. However, provisions included in the Act covered only the area of employment, excluding other areas, such as health care, education and access to goods and services. The Polish authorities still had not implemented any provisions prohibiting discrimination based on gender identity.

Para 13) AI stated that the Criminal Code specifically provided for the investigation and prosecution of hate crimes motivated by race, ethnicity, nationality, religion and political affiliation. However, it did not establish that age, disability, gender, gender identity and expression, sexual orientation, and social or economic status were grounds to investigate and prosecute hate crimes

Para 18) Concerning the collection of data on and monitoring of hate crime and hate speech, JS4 stated that the system was fairly capable of capturing recorded incidents motivated by racism and xenophobia (bias motivations included in the Criminal Code), however, when it came to biases which were not mentioned in the Criminal Code, primarily sexual orientation, gender identity and disability, the numbers captured were still negligible

Para 21) Concerning recommendation 90.67 on guaranteeing the full enjoyment of the rights of the LGBT community, TF indicated that its implementation was a subject of debate, although it had been said to be “in the course of implementation”.

Para 22) JS4 noted that Poland had not implemented recommendations 90.66, 90.68 and 90.94 on hate crimes against LGBT persons

Para 23) On recommendations 90.68 and 90.71, JS6 stated that LGBTI persons did not receive the full protection of the State for their enjoyment of freedom of association. A refusal to officially acknowledge attacks against them left LGBTI persons and other minority groups without adequate protection. AI noted that, in February and March 2016, the offices of two major LGBTI organizations in Warsaw, Campaign against Homophobia and Lambda, were attacked.

Para 24) As for recommendation 90.70, TF stressed that transgender persons had still not been included in the anti-discrimination law. For recommendation 90.71, TF welcomed the introduction of partial funding of hormone in 2015 by the Ministry of Health. However, TF regretted a 2016 draft policy on diplomas and certificates of higher education, which required transgender people, who had received legal gender recognition, to return the original diploma and all of its official copies, in order to have a new diploma and certificate issued.

Para 25) Concerning recommendation 90.94, TF noted an elevated interest of law enforcement in training on transgender issues between 2011 and 2014, however, according to TF, such an interest decreased significantly in late 2015 and throughout 2016.

Para 61) In reference to recommendations 90.69, 90.71, and 90.97, KPH indicated that the adoption of legislation enabling same-sex couples entering into civil union was still necessary. According to KPH, lack of recognition of same sex-couples led to discrimination of both same-sex couples and of trans persons in marriages, who needed to divorce in order to receive legal gender recognition. EU-FRA raised similar concern. According to JS5, Polish citizens who intended to get a civil partnership or marriage with a same-sex partner were often refused the civil status certificates, due to the fact that the Constitution defined marriage as a relationship of a men and a woman.

Para 62) TF stated that a number of trans persons were delaying their legal gender recognition and medical transition in fear of losing parental rights, as the rights of transitioning parents had not been safeguarded by the State. Furthermore, according to TF, there were no existing alternatives to trans persons and their spouses, who wished to remain in a relationship, as Poland did not recognize neither same sex marriage, nor civil partnerships of any kind, hence couples were effectively forced to divorce as part of legal gender recognition

National Report:
Para 6) Since the second UPR, Poland has ratified or signed the following international conventions:
• Council of Europe (CoE) Convention on Preventing and Combating Violence against Women and Domestic Violence, made in Istanbul on 11.05.2011; ratified on 13.04.2015; took effect on 1.08.2015.

Stakeholder Summary:
Para 79) SIP indicated that, following the previous UPR recommendations (90.27-28), Poland had ratified the Council of Europe Convention on preventing and combating violence against women and domestic violence. However, according to SIP, no steps had been taken to strengthen the protection of migrant women from gender-based violence despite explicit guidelines enshrined in the Convention.