OPINION: LGBT+ rights in Poland are at a tipping point

Thursday, 4 November 2021 10:39 GMT

Demonstrators holding flags attend a gathering in support of the LGBT community, in Warsaw, Poland June 26, 2021. Kuba Atys/Agencja Gazeta via REUTERS THIS IMAGE HAS BEEN SUPPLIED BY A THIRD PARTY. POLAND OUT. NO COMMERCIAL OR EDITORIAL SALES IN POLAND

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What is the future of free speech and minority rights in Poland?

Philippa H Stewart is Head of Digital at The Clooney Foundation for Justice

Three LGBT+ activists who displayed posters of the Virgin Mary with a rainbow halo in Poland are still dealing with the excessive fallout that came from their trial for “offending religious feelings”. The case was roundly condemned as a vehicle for anti-LGBT+ sentiment, with private prosecutors comparing the rainbow flag to a swastika and referencing the "homolobby".

In April 2019, Elżbieta Podleśna, Anna Prus, and Joanna Gzyra-Iskandar Podleśna put up the posters in response to an Easter display at a church in Płock – 110km northwest of Warsaw – which listed “sins” including “LGBT” and “gender.”

This seemingly small act of solidarity led to a years-long tale of arrest, trial, protests, acquittal, and now a return to court on November 10 after an appeal by prosecutors.

Hundreds of supporters stood outside the courthouse for hours waiting to hear the verdict in their trial, which was monitored by the American Bar Association Center for Human Rights as part of the Clooney Foundation for Justice’s TrialWatch Initiative. The supporters’ presence made clear that this story was about much more than three activists taking on a homophobic priest. It was—and is— about the future of Poland.

One player is Poland’s government, which seems increasingly willing to use laws to silence peaceful protesters, activists and ideological opponents. Since the Law and Justice (PiS) party came to power in 2015, such prosecutions – primarily brought against those who have spoken out against the government or the powerful Catholic Church – have increased, with the number of charges under the law criminalising offending religious feelings increasing from 10 in 2016 to 29 in 2020.

It’s not just suppression of LGBT+ activists that is troubling. So-called “family charters” adopted by municipalities seeking to limit marriage to heterosexual couples, the establishment of “LGBT-free zones” by these same municipalities, attempts to block sex education classes and government moves to limit the sale of contraception, are all characteristics of the current government.

Then there’s Poland’s judiciary. Increasing interference from the ruling party, including removal of judges who deviate from the government agenda, threatens judicial independence, with the rule of law weakening in the face of a political onslaught.

In the activists’ trial, the court did the right thing and acquitted, saying the rainbow halo was being used “to draw attention to the necessity of equality of people on the basis of orientation, gender affiliation”.

But when speaking to CFJ, one of the defendants in the case, Anna Prus, pointed out that they were all women with relatively high social standing who had good lawyers to defend them. Those who are more vulnerable, such as members of the trans community or those without the connections to get a good defense team together, for example, might not be so fortunate.

Either way, in the future such acquittals might become increasingly unlikely. The Polish government has put in place a new “Disciplinary Chamber” to sanction judges (often those deemed too independent). The European Court of Justice has since ruled that the Chamber is susceptible to political influence, in contravention of international and regional human rights standards.  On the other hand, the Polish constitutional court recently held that domestic law trumped EU law.

The future of free speech and minority rights in Poland may well depend on the debate being played out in the case of the Rainbow Mary activists: between those who want to pursue a homophobic and ethnocentric agenda in court and those who want the courts to protect vulnerable groups from persecution.