CIVICUS discusses an initiative to recognise hate speech against LGBTQI+ people as a hate crime with Olga Pawłowska-Plesińska, Advocacy Coordinator at the Campaign Against Homophobia, a Polish civil society organisation.

The Polish government recently announced plans to include sexual orientation, gender, age and disability in the country’s hate crime laws. Insults based on any of these categories, as well as nationality, ethnicity, race and religious affiliation, could result in up to three years in prison. The proposed legislation aims to protect vulnerable minorities and meet international standards. While LGBTQI+ civil society sees this as a victory in a quite conservative environment, there are also concerns that the vague language of the proposed law could lead to it being misused for political reasons.

What’s the legal and social environment for LGBTQI+ people in Poland?

LGBTQI+ people in Poland lack basic protection. The Penal Code doesn’t address discrimination based on sexual orientation or gender identity, leaving people vulnerable to violence and exclusion. The only place in the Polish legal system where discrimination based on sexual orientation is mentioned is in the Labour Code, which prohibits this type of discrimination in the workplace. Because of these legal gaps, justice in cases of homophobic and transphobic hate speech and hate crimes is, to say the least, obstructed, which leads to serious consequences for LGBTQI+ people and society as a whole.

Hate speech and hate crimes are alarmingly common in Poland. According to ILGA Europe’s Rainbow Map and Index, Poland is one of the worst countries in Europe for LGBTQI+ rights.

Social Situation of LGBTA People, a report we published in 2021, contains survey data showing that 53 per cent of respondents felt discriminated against in public spaces, almost 30 per cent when accessing public services, 14 per cent when accessing healthcare and over 10 per cent at work when information about their sexual orientation or gender identity was shared or revealed. Almost 70 per cent reported experiencing violence, with 60 per cent reporting verbal violence, 36 per cent threats, 22 per cent sexual violence and 14 per cent physical violence. Yet only 2.5 per cent of incidents are reported to the police because victims often don’t trust the justice system.

This has a terrible impact on the stress levels and mental health of LGBTQI+ people. Similarly, lack of legal protections for same-sex couples, as we continue to fight for the Civil Partnership Bill, lowers LGBTQI+ people’s sense of safety and adds to the feeling of inequity and exclusion.

How will the new legislation improve the situation?

The original Polish Criminal Code, adopted in the 1990s, only listed a narrow catalogue of groups considered vulnerable to hate crimes, although it didn’t use the term. After joining the European Union, Poland was obliged to expand the list to cover other excluded and minority groups. The Criminal Code currently covers national, ethnic, racial and religious affiliation.

The aim of the new amendments is to implement the constitutional prohibition of discrimination on any grounds, comply with international recommendations and increase the effectiveness and efficiency of the prosecution of acts motivated by discrimination. The new law will extend hate crime protection to age, disability, gender and sexual orientation, with perpetrators getting penalties of up to three years in prison.

At least in theory, the bill has great potential to significantly improve the lives of LGBTQI+ people. However, it falls short by excluding gender identity from its scope, despite clear evidence of discrimination against transgender people in Poland. The first version of the bill, published in March 2024, included language on gender identity, but this was removed during internal negotiations. When the second version was published in October, we provided data highlighting the importance of including gender identity, but our request was dismissed.

To provide much-needed protection and fulfil Poland’s constitutional commitment to equality, the bill needs to be improved. It needs a clearer definition of hate crimes with a focus on the perpetrator’s motivation. It also must extend protection to all people who are targets of hate speech, including those who don’t have a specific characteristic listed in the law but have been wrongly assumed to have one. This would for instance cover someone who is assaulted on the mistaken assumption they are gay.

Who pushed for this law?

In 2016, as part of its comments on Poland’s seventh periodic report on the implementation of the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee recommended amendments to the Criminal Code to protect excluded communities and minority groups from hate crimes. Two successive Polish Ombudsmen have also repeatedly raised the issue and addressed requests to the Ministry of Justice. A similar recommendation was made by the Polish Committee on the Rights of the Child in 2021. In March 2010, the Committee of Ministers of the Council of Europe also called on all member states to adopt measures to combat discrimination based on sexual orientation or gender identity.

Civil society has also played an important role in advocating for all excluded and minority groups to be legally protected from hatred in public discourse. Its advocacy, together with the efforts of the Human Rights Commissioner, has contributed to growing public opposition to violence and discrimination against particular groups. Paradoxically, the former ruling Law and Justice Party’s (PiS) smear campaigns against LGBTQI+ people have led to greater public opposition to hate speech and increased support for the LGBTQI+ community.

How does this legislative change in Poland compare with recent regional trends?

In recent years, several countries in the region had the political opportunity to push for legal recognition of same-sex couples and better protection against hate speech and hate crimes. Some have made progress: Estonia and Slovenia have legalised marriage equality, while civil partnerships are available in Croatia, the Czech Republic, Hungary and Latvia.

But some, including Estonia, still don’t offer protection for rainbow families. Estonian activists and liberal politicians couldn’t get a more progressive bill through, so they settled for a step forward.

This is also the approach we’ve taken in Poland under the more liberal government that formed after the October 2023 election. In the PiS era it would have been impossible to even talk about legal change. The Civil Partnership Bill is imperfect and doesn’t provide protection for rainbow families, but it’s a good first step. This progress keeps us motivated, although our optimism risks waning if time keeps passing without the legal changes promised during the election campaign materialising.

What legal or policy changes will you pursue next?

During the PiS era there was no dialogue between the government and civil society, but this has now changed. We are now present at parliamentary team meetings and official consultations, and we keep in touch with liberal politicians to follow up on relevant bills. This creates opportunities for direct advocacy, which we have used to lobby for the amendments to the Hate Speech and Hate Crime clause and push for the Civil Partnerships Bill.

However, we still face some serious challenges. One of the main obstacles is the presence of the People’s Party (PSL) in the ruling coalition. PSL politicians refuse to engage in dialogue with the LGBTQI+ community and constantly find reasons to oppose legal change, often using arguments that are difficult to take seriously. For example, they have suggested that civil partnerships will be used to extort agricultural land from the state due to preferential purchase conditions for civil and married partners.

The current political situation in Poland needs a flexible approach and the capacity to react rapidly to the constantly changing political situation. This requires significant resources.