| Click here for a summary of the Poland’s review at the first cycle and/or the third cycle. |
13th UPR session
Date of review: 30 May 2012
Date of report adoption: 20 September 2012
Working Group report: A/HRC/21/14
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SUMMARY SOGIESC issues during Poland’s 2nd UPR review |
I. Key issues/recommendations identified by NGOs
- Combat hate speech and intolerance against LGBT persons;
- Prohibit discrimination based on sexual orientation and gender identity including in education, the workplace and in healthcare;
- Legally recognise same sex couples;
- Legally recognise each person’s self-defined gender identity.
II. Excerpts from input reports
National report
II. Legislative, legal and institutional development
A. Legal framework
3. Implementation of EU anti-discriminatory directives
4. On January 1, 2011, the Act of 3 December 2010 Implementing Certain European Union Provisions on Equal Treatment entered into force. The new law identifies areas and ways to prevent violations of the principle of equal treatment on account of sex, race, ethnic origin, nationality, religion, faith, beliefs, disability, age, or sexual orientation. The Act regulates the legal situation and fully transposes the provisions of European Union anti-discriminatory directives. It also sets out legal measures for protection of the principle of equal treatment and identifies authorities responsible for the implementation of this principle.
III. Progress in the field of human rights promotion and protection
A. Civil and political rights
1. The right to life, freedom and security
e) Human rights education of the Police
Implementation of recommendation 16
25. In 2008-2011, human rights protection became more systemic, planned and strategic in Police operations. A network of plenipotentiaries for human rights began their work under the motto “Human beings come first”. Police recruitment system was also changed. The examination of a candidate’s hypothetical reactions in interaction with another person became more thorough. In addition, unprecedented workshops were organized for middle-level management under the heading “Human Rights in Police Management”. A guide for Police trainers was developed under the title “To Protect and to Serve – How to Foster the Right Attitudes and Behaviours During Primary Professional Training”. The Police continue to provide training courses to officers on prevention and combating hate crimes. Representatives of national, ethnic, religious and sexual minorities educate policemen as part of different projects. The Polish Police also cooperates with other European police forces in developing common antidiscrimination strategies. One example of such cooperation is the European Diversity in Policing project.
5. The right to education/human rights education
Implementation of recommendation 13
69. Draft amendment to the Educational System Act of 2007 required schools to protect students against content that “threatened their correct mental and moral development” by attacking the principle that marriage and the family should be protected and by promoting homosexuality. As education is an action undertaken on the basis of dialogue and social consultations, given that the proposed amendments had not met with acceptance, they were firmly rejected.
7. Women’s rights and equality of sexes
c) Government Plenipotentiary for Equal Treatment
Implementation of recommendation 14
91. In March 2008, in order to increase the effectiveness of the government institutional system dealing with protection against discrimination, the Government Plenipotentiary for Equal Treatment was appointed in the rank of secretary of state in the Office of the Prime Minister. The Plenipotentiary worked from 2008 until 2010 pursuant to the Ordinance of the Council of Ministers of 22 April, 2008, that defines her competencies.
92. The Act Implementing Certain European Union Provisions on Equal Treatment from 2010 tasks the Plenipotentiary with the implementation of government equal treatment policy, including counteracting discrimination, in particular on account of sex, race, ethnic origin, nationality, religion, faith, beliefs, age, disability, and sexual orientation. The Plenipotentiary carries out the following tasks, among others:
- drafting and providing opinion on draft laws in the scope of equal treatment,
- analysis and assessment of legal measures to see whether they respect the principle of equal treatment and submitting motions to enact or amend legislative acts;
- acting to eliminate or limit the consequences of violating the principle of equal treatment;
- analysing and assessing the legal and social situation when it comes to equal treatment and initiating, implementing, coordinating or monitoring measures meant to ensure equal treatment, as well as protect against discrimination;
- cooperating with competent public administration authorities, social partners, NGOs and other entities in the area of equal treatment;
- promoting, disseminating and propagating issues relating to equal treatment;
- preparing the National Equal Treatment Action Plan.
9. Equal treatment and non-discrimination
Implementation of recommendations 6, 12, 19
107. In undertaking measures to counteract discrimination on all grounds, the government actively cooperates with a number of non-governmental organizations. On the one hand, these measures are addressed to the individual groups at risk of discrimination; on the other hand, they aim to raise social awareness in the field of counteracting discrimination.
b) Counteracting labour market discrimination
118. Complaints against discrimination filed with the National Labour Inspectorate:
| Basis of discrimination | 2008 | 2009 | 2010 | 2011 (Q1-3) |
| Sex | 43 | 37 | 46 | 61 |
| Age | 28 | 41 | 47 | 55 |
| Religious denomination | 0 | 0 | 0 | 2 |
| Disability | 0 | 0 | 14 | 13 |
| Sexual Orientation | 0 | 0 | 2 | 1 |
c) Counteracting hate crimes
123. Actions directed against an individual due to hatred or intolerance for other reasons (e.g. social provenance or sexual orientation) are investigated as specific crimes, e.g. calumny, physical breach of personal integrity, battery or assault causing bodily harm, unlawful threats.
d) Counteracting Racism and Xenophobia
129. Examples of the Plenipotentiary’s structural, educational and promotional activities include:
- The “Equal Treatment – A Standard of Good Governance” project with a view to preparing central government administration at all levels to draft and monitor laws, as well as create and implement strategies which serve the principle of equality. Alongside training workshops and research tasks, the project also consists of the “See? React!” public awareness campaign promoting equal treatment and active participation in anti-discrimination measures.
- Analyzing newly authorised school textbooks from the point of view of criteria of compliance with the principle of equal treatment regardless of sex, race, ethnicity, nationality, religions, faith, political opinions, age, sexual orientation, marital and family status.
- TV election ad entitled “Different but Equal” which promotes equal treatment regardless of sex, age, race, ethnicity, disability or sexual orientation.
f) Rights of individuals belonging to sexual minorities
Implementation of recommendation 17
138. Just like any other Polish citizen, LGBT persons have the right to freedom of speech, freedom of association, and freedom of peaceful assembly and organization of various events, including conferences, film festivals, and activities aimed at increasing public awareness. Organizations which focus on protecting human rights – including LGBT rights – have full access to public funds, including EU funds allocated in the form of grants and other forms of funding.
139. Some of the events organized by the LGBT community are of a nationwide and open format – e.g. parades which take place in the streets of the largest Polish towns. Polish law enables organizers and participants to hold free and safe parades and demonstrations (e.g. EuroPride 2010 in Warsaw). In an effort to better implement the constitutional principle of freedom of assembly, the Ministry of Interior has drafted an amendment to the Act of 5 July 1990 – the Law on Assemblies.
140. Pursuant to the Labour Code Act, in the event that an employer violates a person’s right to equal treatment in employment (e.g. on the grounds of sexual orientation), such person may claim damages.
141. Since 2011, large-scale events attended by representatives of the LGBT community are monitored by Police plenipotentiaries for human rights protection, e.g. in terms of the behaviour and reactions of Police officers. The Police cooperate with LGBT associations “Campaign against Homophobia” and “Lambda”. This cooperation consists both in raising LGBT awareness among Police officers, and in organizing meetings of LGBT representatives with Police experts on how to help crime victims.
Police Plenipotentiaries for Human Rights Protection
Implementation of recommendation 29
142. Police Plenipotentiaries for Human Rights Protection continue to operate. In 2010-2011, the Police Headquarters Plenipotentiary for Human Rights Protection held meetings in London, Brussels and The Hague. The meetings focused on LGBT rights and how to protect them. In 2011, the Plenipotentiary held study visits and attended seminars in Austria, Ireland, the Netherlands, Spain and the UK, organized by the Police community and devoted to developing an anti-discrimination policy and exchanging European police practices in the field of human rights protection. Information on measures undertaken by Police Plenipotentiaries for Human Rights Protection in the framework of the LEOP programme were also presented on the SOCE forum and were met with great interest.
Compilation of UN information
III. Implementation of international human rights obligations, taking into account applicable international humanitarian law
A. Equality and non-discrimination
15. In 2010, HR Committee was concerned that the Law on Equal Treatment is not exhaustive and does not cover discrimination based on sexual orientation, disability, religion or age in the fields of education, health care, social protection and housing. Poland should further amend the Law so that the issue of discrimination based on all grounds and in all areas is adequately covered. Furthermore, CESCR remained concerned at the de facto discrimination experienced by some disadvantaged and marginalized individuals and groups, such as ethnic minorities, persons with disabilities, and lesbian, gay, bisexual and transgender persons in the enjoyment of their economic, social and cultural rights.
16. HR Committee noted with concern a significant rise in manifestations of hate speech and intolerance directed at lesbian, gay, bisexual and transgender people. It also regretted the absence of a provision in the Penal Code on hate speech and hate crimes based on sexual orientation or gender identity as punishable offences. Poland should ensure that all allegations of attacks and threats against individuals targeted because of their sexual orientation or gender identity are thoroughly investigated. It should also: legally prohibit discrimination on the grounds of sexual orientation or gender identity; and amend the Penal Code to define hate speech and hate crimes based on sexual orientation or gender identity among the categories of punishable offences. CESCR recommended that Poland counter homophobic attitudes in educational settings, ensuring that individuals are not discriminated against on the basis of their sexual orientation and identity.
Summary of stakeholders’ information
II. Information provided by other stakeholders
C. Implementation of international human rights obligations
1. Equality and non-discrimination
12. Trans-Fuzja Foundation (T-FF) stated that transgender persons, particularly trans women, often face discrimination based on their gender identity and/or gender expression. JS5 indicated that the scope of protection offered to LGBT persons is limited to labour law and gender identity was not listed as a possible ground of discrimination. JS5 stated that there are no hate speech provisions in the Criminal Code that include sexual orientation and gender identity as a possible ground or even an aggravating circumstance. JS5 noted a growth in the number of complaints against homophobic behaviour of police officers while police homophobic misconduct did not result in any punishment. T-FF recommended that Poland review the legal measures aimed to combat discrimination and include gender identity and gender expression as possible discrimination grounds in any context. JS6 recommended that Poland amend the Criminal Code by criminalizing crimes motivated by homophobic and gender biases. T-FF recommended that Poland adopt legal measures to combat hate crime and hate speech.
13. JS5 stated that Poland does not legally recognise same-sex relations and therefore Polish citizens often choose to enter in marriage or civil partnership abroad. However, JS5 mentioned that the administration adopted a policy denying the issue of required documents to those citizens. JS6 recommended that Poland adopt regulations on same-sex partnerships or marriages.
4. Right to privacy, marriage and family life
28. T-FF recommended that Poland adopt a law on gender recognition, which respects the human rights of transgender people and does not require a person to undergo any medical procedures or go through a real-life test. The gender recognition process should also be free of third person intervention and become an administrative matter.
5. Freedom of religion or belief, expression, association and peaceful assembly, and right to participate in public and political life
32. HFHR noted the problem connected with legal procedures regulating freedom of assembly. It stated that organisers of assemblies may receive a decision banning an assembly even one day before the planned date. It stated that following a series of demonstration of November 2011, the amendments to the Law on Assembly was proposed to the Parliament that were not in line with the Constitution and international standards. JS5 indicated that, over the past years there have been repeated cases when city authorities and the police took inadequate measures to secure pride parades and other events organized by lesbian, gay, bisexual and transgender people.
6. Right to work and to just and favourable conditions of work
36. T-FF described the problems faced by transgender people in the work environment and recommended that Poland start monitoring the situation of transgender employees and ensure that every transgender person is protected in their workplace.
8. Right to health
45. T-FF stated that the health care system is known for its non-transgender-inclusive services and transgender persons who completed legal gender recognition process face problem registering to a relevant doctor. T-FF also reported about the lack of state funding for gender reassignment procedures. It recommended that Poland reinstate back the reimbursement of gender reassignment procedures and ensure that the healthcare system reflect the needs of transgender people and their access to healthcare and medicine.
III. References to SOGI during the Working Group review
I. Summary of the proceedings of the review process
A. Presentation by the State under review
14. On the question made by the United Kingdom regarding activities to promote equality and inclusion of members of underprivileged groups, including persons with disabilities and LGBT community, Poland had been preparing a National Action Plan for Equal Treatment for the years 2012–2017, which includes measures to counteract intolerance. Since 2011, a project to counteract discrimination on all grounds at all levels of the government administration, and which includes training to public servants and public campaigns had been implemented. Poland had been preparing a series of trainings for media representatives, co-financed by the European Union. It had also engaged in a Council of Europe project “Fighting discrimination based on sexual orientation and gender identity”, to be implemented in 2013.
B. Interactive dialogue and responses by the State under review
37. Spain raised concern that despite the anti- discrimination Law of 1st January 2011 there was widespread social perception that homosexuality was a disease and de facto discrimination in the workplace and educational centers persisted. It inquired whether Poland intended to launch education campaigns on sexual and emotional diversity or plan to grant a legal status to same sex couples. It made recommendations.
42. The United Kingdom of Great-Britain and Northern Ireland welcomed the Act of 3rd December 2010 Implementing Certain European Provisions on Equal Treatment. It inquired about the implementation of the principle of equal treatment by the authorities and about the progress with respect to the ratification of CRPD. It noted the lack of hate crime provision in the Criminal Code that include sexual orientation and gender identity as possible ground or aggravating circumstance. It made recommendations.
43. The United States expressed concern that discrimination and violence against LGBT persons were still common and most hate crimes against LGBT persons went unreported. It mentioned the recent anti- Semitic incidents and regretted the halting pace of property restitution to Holocaust victims and their heirs. It made recommendations.
60. Australia welcomed the adoption of legislation governing discrimination, differential treatment and the role of the Ombudsperson. It remained concerned by discrimination against LGBT especially transgender persons facing obstacles in accessing health care. It referred to the “conscience clause” for Poland’s pharmaceutical law to allow chemists to refuse selling birth control pills on the basis of religious belief. It made recommendations.
64. Brazil expressed concern about the acts of discrimination and that the high prevalence of discriminatory attitudes and violence against a large variety of ethnic, national and religious groups were still reported by UNHCR, CERD and the Human Rights Committee. It welcomed the new law on Equal Treatment which came in force in 2011, but was concerned about the safety of LGBT people. Brazil made recommendations.
IV. Conclusions and/or recommendations
The following recommendations were accepted by Poland:
90.66. Include sexual orientation and gender identity in the hate speech provisions of the national Criminal Code, and adopt appropriate legal measures making sexual orientation and gender identity as possible discrimination grounds in any context (Slovenia);
90.68. Recognize gender identity as possible ground for discrimination and gender identity and sexual orientation as an aggravating circumstance for hate crime (UK);
90.70. Strengthen anti-discrimination laws with regard to a better protection of LGBT persons and persons with disabilities (Austria);
90.94. Institute outreach by police and law enforcement to LGBT persons and communities to increase reporting of hate crimes (United States of America);
90.99. Continue to protect the natural family and marriage, formed by a husband and a wife, as the basic cell of society, as well as the right to life (Holy See);
The following recommendations were accepted by Poland and are in the course of implementation:
90.67. Guarantee the full enjoyment of the rights of the LGBT community (Spain);
90.71. The adoption of policies that safeguard the rights of LGBT people and fight discrimination based on sexual orientation (Brazil);
The following recommendations were partially accepted:
90.69. Adopt regulations recognising the rights of same-sex couples and of self-defined gender or transgender persons (Australia);
90.97. Pass legislation giving same-sex couples the possibility to enter into a civil union contract (France);
In 2011 and 2012 five projects of a new law on civil union contracts were put forward by the group of parliament members; however, the Government has not yet expressed its opinion on the projects (A/HRC/21/14/add.1)
V. Adoption of the Report
The draft report of the Working Group was adopted at the 21st session of the Human Rights Council in September 2012. Two NGO statements made reference to sexual orientation and gender identity (see below).
Statements by States and other stakeholders
COC Netherlands and Campaign against Homophobia
Delivered by Agata Chaber
Madam President,
Campaign Against Homophobia wishes to recognize some of the efforts of the State’s Secretary for Equal Treatment to mainstream LGBT issues. For the first time has a Government Body proposed a National Equality Programme that includes the needs of the LGBT community. The problem of homophobia and transphobia has been also recognized by the authorities and implementations in police training are being made with the help of NGOs.
Nonetheless – the situation of LGBT persons still remains difficult. Homophobic and transphobic hate speech and hate crimes are common and threaten individuals, their families and friend and the whole community.
During the UPR process the implementation of the long awaited ‘Antidiscrimination Law’ was mentioned. We would like to point out that this act does not insure equal treatment, as is excludes LGB persons in the scope of health services, education, access to goods and services. Gender identity is not mentioned at all. Transgender persons have been mostly neglected by the State – they suffer violence and ridicule, the procedures of legal gender reassignment are stigmatizing and inaccessible. The Polish State does not refund any part of the medical procedure.
The government has also refrained from announcing their position on introduction of a civil partnership act, although the current legislations and their interpretation does not give sufficient rights to cohabiting same-sex partners.
We urge the government of Poland to:
- Adopt hate crime and speech laws pointing specifically to ‘sexual orientation’ and ‘gender identity’ as motives of crime.
- Amend the Antidiscrimination Act so it fully protects LGBT persons.
- Regulate the situation of cohabitating same-sex partners without discrimination.
- Support the pending gender recognition law and insure that transgender person’s rights are secured in accordance with international documents, applied according to the Yogyakarta Principles.
- Guarantee trans person’s access to refunded treatment and at the same the right to life in accordance with their gender identity and expression.
ILGA Europe and Polish Society of Antidiscrimination Law
We would like to draw the Council’s attention to issues related to the protection against discrimination in Poland.
Firstly it has to be recognized that, whilst some anti-discrimination provisions have been adopted, the lack of equal legal protection from discrimination for all people in all areas of life remains problematic. The Act of 3 December 2010 on the implementation of certain provisions of the European Union on equal treatment does not ensure sufficient equal treatment and has limited scope in relation to disability, age, sexual orientation, gender identity and religion or belief. There are certain areas of life – for instance health care – in which there is no protection for women, Lesbian, Gay, Bisexual, Transgender and Intersex people, persons with disabilities and older persons. We urge the Polish Government to revise and amend this Act so that it guarantees protection of all groups in all areas of life.
Additionally, following the recommendation made by Norway, we call upon the Polish Government to allocate sufficient financial resources for the Office of the Ombudsman in order to fulfil its obligations as an independent organ for equal treatment.
Secondly, it must be noted that although The Convention on the Rights of Persons with Disabilities was ratified by Poland, there was an interpretative declaration under art. 12 that does not guarantee the enjoyment of equal legal capacity for persons with disabilities in all aspects of life. The Polish Civil Code still contains provisions on incapacitation of people with mental disabilities which contradicts with the principle of equality of legal capacity laid down by the Convention. This means that the level of protection for people with disabilities against discrimination is reduced. We urge the Polish government to revise and amend relevant provisions regarding this issue and adjust them to the standard set up by the Convention.
Moreover, under the Convention on the Rights of Persons with Disabilities, the Polish Ombudsman was also granted new competences in terms of monitoring of implementation of the Convention. Therefore, we once again urge the Polish Government to ensure that the Ombudsman’s office is adequately financed to fulfil its roles in this regard.
VI. Further information
UPR Documentation
For first cycle reports of Poland, please see here
National report 1 : A | C | E | F | R | S
Compilation of UN information 2 : A | C | E | F | R | S
Summary of stakeholders’ information 3 : A | C | E | F | R | S
Questions submitted in advance : E
Addendum 1: E
Outcome of the review
Draft report of the Working group: A | C | E | F | R | S
Addendum 1: E