Does the law protect everyone equally?
An interview with adwokat Filip Rak from the criminal practice at Wardynski & Partners on the role of values in a lawyer’s work, protection of minority groups, the rights of LGBTIQ people, and changes needed in Polish anti-discrimination law.
A question at the beginning: Does the law protect everyone equally?
According to the Polish Constitution, certainly—everyone is equal before the law. But the law is a formal layer of state activity. There are also the factual realities, and in recent years we have seen a significant backsliding in this regard. State bodies and officials have attacked various social groups. The state has not acted as a guardian. It has curtailed rights instead of guaranteeing them.
This has been especially true for groups at risk of exclusion or vulnerable in some way—either minority groups or persons exposed to difficulties that most people do not face.
Have these actions been deliberate, or simply thoughtless or negligent?
These have been deliberate actions. Refugees are an example. Since 2015, they have been portrayed as a threat, and the authorities have focused on them to consolidate public support for their policies. After several years, during the crisis on the Polish-Belarusian border, the state failed to meet its obligations. This has been acknowledged in court rulings and in findings by international human rights organisations. Poland has not fulfilled its obligations under international law for example regarding applicants for international protection. The Police, the Border Guard and the Prosecution Service have even prosecuted people for helping refugees.
LGBTIQ people have also become the target of similar viciousness, which particularly intensified in 2018–2021. This was also related to the 2020 presidential campaign in Poland, when LGBT people, like migrants before them, were portrayed as a cultural threat to morality, to the identity of the Polish nation. This has been followed by further actions by state bodies. Local governments have passed anti-LGBT resolutions. Politicians, including the President, have called LGBT people “an ideology, not people.” The Minister of Education has said that “such people are not equal to other people,” so they should not have the same rights.
The state has done nothing to stop this hate speech, and has even inspired it. When the Ombudsman brought complaints to the administrative courts against the anti-LGBT resolutions adopted by dozens of Polish local governments, state bodies intervened in the proceedings. For example, the National Prosecution Service sent a prosecutor to argue for upholding these resolutions.
What was the justification?
The argument has been that local governments enjoy freedom of speech, and parents have a right to raise their own children, and therefore local governments have the right to ban, here I quote, “homopropaganda” in schools.
How can such discrimination be fought?
In such situations, the role of those state bodies that continue to uphold the rule of law is growing. For example, the Ombudsman has sided with individuals vulnerable to infringement of their rights during all crises.
The role of independent courts, and lawyers representing persons at risk and seeking protection from the courts, is vital. This is why the crisis in the judiciary in Poland has been such a major setback, as it has also been aimed at bringing judicial protection under the control of the executive branch.
And the role of civic initiatives can hardly be overstated. For example, during the hate campaign against LGBTIQ people, many new pro-equality organisations were established. Among other efforts, the Hate Atlas (Atlas Nienawiści), a group of four activists, and the activist Bart Staszewski publicised the problem of anti-LGBT resolutions in Poland and around the world. It is thanks to their work that EU institutions have become interested in this issue.
Under these unfavourable circumstances, have lawyers been successful in winning discrimination lawsuits?
Yes. Initially, nine anti-LGBT resolutions were challenged by the Ombudsman and then set aside by the court, and these judgments were upheld by the Supreme Administrative Court. The Ombudsman has also challenged other resolutions, and these cases are pending, but I assume that the rulings will be similar, as there is already a line of case law established by the Supreme Administrative Court.
There have also been a number of proceedings targeting transgender people. The Prosecutor General has personally filed extraordinary appeals in cases involving transgender people, seeking to limit their protection against discrimination. I can cite the example of a woman who was fired from her job in Warsaw for being transgender, and appealed to the court. The civil court ordered the employer to pay her compensation, but the Prosecutor General filed an extraordinary appeal against this ruling for the plaintiff. At the time, the Ombudsman responded to the appeal by asserting that the Supreme Court of Poland should not consider it, and in the end, somewhat surprisingly, the Extraordinary Review and Public Affairs Chamber of the Supreme Court dismissed the extraordinary appeal. This was a very favourable ruling, taking into account human rights issues under the Constitution and the European Convention on Human Rights.
However, the crisis of the rule of law is at play here again, as this favourable ruling by the Supreme Court was issued by persons who have not been properly appointed as judges, as confirmed by a resolution of three combined chambers of the Supreme Court and by case law from the Court of Justice of the European Union. Therefore, this positive ruling will be open to challenge in the future. That means it does not protect transgender people as much as it could.
Does Polish law say anything about transgender people, or is their protection derived from other provisions regarding equality before the law or the ban on discrimination?
The answer to this question is not straightforward, because Polish legislation does not expressly regulate the situation of transgender people. For example, in the Anti-Discrimination Act (Act on Implementation of Certain European Union Laws on Equal Treatment) there is no explicit reference to gender identity as grounds for protection against discrimination. There is no law that regulates legal gender recognition. An act that would have done this was vetoed by President Andrzej Duda in 2015. Nonetheless, this does not mean that the rights of transgender people are completely absent from Polish law. Case law has emerged from the courts to address these legislative shortcomings, and has established a judicial procedure for legal gender recognition through an action for a declaratory judgment (Civil Procedure Code Art. 189). Therefore, the issue of transgender people’s rights is present in Polish law, but mainly through court rulings.
We also have the case law of the European Court of Human Rights issued on the basis of the European Convention on Human Rights, which is part of Polish law. These rulings expressly mention the rights of transgender people, including most importantly protection against discrimination. The Court of Justice of the European Union has also spoken on this issue.
There is also the issue of the right to self-determination, which the European Court of Human Rights derives from the right to privacy (Art. 8 ECHR). On these grounds, the court in Strasbourg has found a right to legal gender recognition by transgender people.
The occasion for our interview is that you have won first place in the Rising Stars competition organised by Wolters Kluwer. The jury recognised you for your involvement in many issues of equity and social justice. You have defended climate activists and pro-democracy activists, and participated in a case brought by a person alleging mistreatment at a secret CIA prison in Poland. Did you choose the legal profession with this in mind?
I think the fundamental issue for anyone passionate about their profession is the values they live by. If certain values personally affect us, they become especially important to us. And for me, as a human being, the basic issues of social justice and protection of minority rights are very close to my heart. Therefore, I have always tried to work in places where I have a chance to realise these values by helping people.
Additionally, my professional passion is criminal law, an area where cases naturally arise where people who are excluded or victimised can be helped. The same is true in the field of human rights.
You managed to have the Covid Special Act amended so that it would allow for eviction of perpetrators of domestic violence. How can one person singlehandedly ensure that a law is amended?
It started when I read a press report in which a bailiff raised this legal problem. At the time, I analysed the Covid Special Act and noticed that it actually imposed a complete ban on evictions, meaning that it also prevented the eviction of perpetrators of domestic violence, and there were laws that regulated this issue. I wrote an article about it for the website prawo.pl, in which I made specific recommendations for amending the act—what exceptions it should make, what should change.
Then I addressed it to all possible places and sent the link to the article to many people, including female MPs of various parties. It was a rapidly evolving situation, during the first weeks of the pandemic. In the end, Monika Rosa, an MP from the Nowoczesna party, asked me to draft an amendment, which I did at a fast pace. Ms Rosa then set this in motion during the consideration of other amendments to the act making their way through the parliament at the same time.
This is probably a case of an oversight by the legislature. It’s hard to imagine that victims of domestic violence would purposely be put in this legal position.
It should be borne in mind that this was happening not long before the Minister of Justice announced an application to withdraw from the Istanbul Convention, which is the most important act of international law for protecting victims of domestic violence. But in this particular case, fortunately, the deficiency was corrected rather quickly.
At the Ombudsman’s Office, you were also in charge of strategic litigation. What is that?
Strategic litigation is court proceedings aimed at certain systemic changes that go beyond the individual situation of the client. Hence the strategic aspect of climate lawsuits, for example, which seek to change state climate policies via litigation.
Cases of Polish citizens who attempted to enter into a same-sex marriage before the Polish authorities are now pending before the European Court of Human Rights. They obviously expected their requests to be denied in Poland, but sought to be married here anyway, so that they could bring their case before the court in Strasbourg and it could order Poland to regulate same-sex relationships.
Of course, for us as lawyers, the most important thing is always the interests of the client. Therefore, if such goals are to be pursued, they must always be consistent with the goals of the client. The client must always be aware, or should even be willing that their case take on this broader dimension.
Are such measures ever likely to succeed?
In the case of civil unions, we encountered an analogous situation, that is, an attempt to obtain a favourable ruling from the European Court of Human Rights involving Romania, and earlier Italy. There, the strategic litigation was successful. In May of this year the court in Strasbourg held in Buhuceanu v Romania that Romania was in violation of the European Convention on Human Rights by failing to regulate same-sex unions.
Other than the regulation of civil unions, what else should change in Polish law when it comes to the situation of LGBTIQ people?
The crisis in protection of human rights we have been dealing with did not come out of nowhere. Our legal system has many gaps when it comes to protecting the rights of minorities, and the state of civil rights protection has gotten even worse over the past eight years. As for the legislative shortcomings themselves, we could mention first and foremost the lack of protection against hate crimes.
Art. 257 of the Criminal Code, which provides protection against hate speech, extends protection to people based on their national, ethnic, racial and religious affiliation, including irreligiousness. That’s it. It does not cover hate speech on a number of other grounds, such as disability, economic status, sexual orientation, gender identity, sexual characteristics, or occupation. We had a problem with the last of these, for example, in connection with the hate campaign against judges, or hate speech against doctors during the coronavirus pandemic.
Furthermore, as we have already discussed, we have a complete lack of regulation, and thus no legal certainty, in the situation of transgender people. The issue of legal determination of gender should have been regulated by law a long time ago.
You are also involved in protecting the rights of intersex people. Can you elaborate more on this issue?
Intersex people face some of the most serious human rights violations. Intersex people are the “I” in “LGBTIQ.” They are often confused with transgender people, but they are different groups. Intersex people are born with differentiated sex characteristics. Intersexuality can manifest itself on many different levels, from chromosome patterns to hormonal balance and anatomy. Sometimes, variations in sex characteristics can manifest or be discovered later in the life of an intersex person. United Nations data indicate that about 1.7% of the population is intersex. So it is a very common issue, and intersexuality is a spectrum, like gender in general.
Only a few countries legally recognise the problems faced by intersex people, starting with serious discrimination not only in a social context as a result of their appearance, but also in a health context. Intersex people often require specific medical assistance and very often face exclusion or various violations of their patient rights.
But the most glaring problem continues to be the surgical operations performed on intersex children or newborns. Such surgeries are often not medically justified and are only for aesthetic purposes. Doctors often assume that these people will have an easier life if they are operated on. But often the operations cause serious consequences for the health and later life of intersex people.
What do such operations consist of?
The situations vary significantly. But, for example, a child might be classified on visual inspection as a girl, and then an organ referred to by medicine as a “micropenis” is removed. It is only later, when the child has grown up, that it turns out that he identifies as a boy. In such a situation, this child is simply mutilated. And reversing gender assignment is a very difficult and lengthy procedure. It is what transgender people face, for example.
When I was dealing with this topic at the Ombudsman’s Office, the Ombudsman requested information from the National Health Fund on how many surgeries on intersex children (under age 16) are performed annually in Poland by the health service. We asked about specific ICD entries (disease classifications by the World Health Organization). Statistics are kept for each such entry. On this basis, the Minister of Health responded that collectively several thousand surgeries are performed annually. The numbers ranged between 5,000 and 7,000. That is the scale we are talking about.
Of course, not all of these operations were unjustified. But based on the opinions of medical experts we consulted, it appears that about half of these surgeries were not performed out of medical necessity, or could have been postponed until the intersex person reached the age of informed consent. So procedures are carried out that deeply interfere with children’s later life, before they can decide for themselves.
Therefore, the basic legislative demand is to introduce a ban on surgery on intersex children, unless there is an absolute medical need to protect their life or health, before the age when they can give informed consent to surgery—that is, before age 16.
What changes are needed in anti-discrimination law?
Here we need changes in the protections under civil law. Anti-discrimination provisions are set forth in the Labour Code and the Anti-Discrimination Act. This is an act providing protection for a number of reasons in various areas of social life. As I said, many grounds are not expressly mentioned—for example, gender identity, sexual characteristics, or economic status. And not every ground is protected to the same extent and in all areas mentioned in the act. For example, under this act people with disabilities, similarly to LGBT+ people, are not protected in the delivery of services.
But these are just examples. The point is that the act distributes protection unevenly, while it should distribute it evenly across all grounds in all areas. Such differentiation has no constitutional justification. The act is intended to implement Art. 32 of the Constitution, which talks about equality before the law. Therefore, equality should be guaranteed, and not dependent on who belongs to which group. As the Ombudsman has repeatedly pointed out, this is a misunderstanding. I should mention that the act in question was introduced not by the recent Law & Justice government, but by the Civil Platform/Polish People’s Party government in 2010.
Here we return to where we started—facts on the ground. Will the mere adoption of legislation lead to a cultural shift and an end to discrimination?
I think the law shapes social behaviour. It can be an instrument of social policy aimed at protecting the rights of minorities.
Many people criticise protection against discrimination or protection against hate speech as an “assault on free speech.” But protecting the vulnerable members of society is a duty of a democracy governed by the rule of law. And that should end the discussion.
Interview conducted by Justyna Zandberg-Malec
