Over the past few years it has become increasingly clear that many government-led violations of LGBTI rights in EU Member States go hand-in-hand with an undermining of the rule of law and democracy. This includes in particular the degradation of the independence of judicial systems and the media landscape.

Particularly stark among this year’s submissions is the continual problem of non-implementation of European court judgments, especially around the right of LGBTI people to respect for their private and family life and the best interests of their children, as well as judgments related to legal gender recognition.

Efforts by authorities to restrict civic space; legal harassment, threats, hate speech and smear campaigns against LGBTI human rights defenders; and inadequate implementation of hate crime and anti-discrimination laws also remained prominent in 2023.

The European Court of Human Rights has issued a judgement against Poland in a case taken by five same-sex couples in the country, seeking to have their relationships legally protected.

Today, in the case of Przybyszewska and Others v. Poland, the European Court of Human Rights (ECHR) ruled that the Polish State is in violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights, having failed to comply with its duty to ensure that the applicants had a specific legal framework providing for the recognition and protection of their same-sex unions.

That failure had resulted in the applicants’ inability to regulate fundamental aspects of their lives and amounted to a breach of their right to respect for their private and family life.

The case was taken to the ECHR in 2017 and 2018 by five same-sex couples in stable relationships who live in the Polish cities of Lodz, Cracow and Warsaw.

Since marriage is the only way to formalise a relationship in Poland, the couples independently decided to marry a few years ago and approached their local civil registry offices in order to carry out the necessary formalities to get married. The authorities refused to marry them, as under Polish law marriage can only be between a man and a woman.

One of the Polish Government’s arguments was that the traditional concept of marriage as a union of a man and a woman constituted Poland’s social and legal heritage, but the Court noted that the present case did not concern same-sex marriage. Member States, it said, are able to determine the exact nature of the legal regime to be made available to same-sex couples, but have significantly less discretion when it comes down to legal recognition and protection in general.

The Court therefore concluded that the Polish legal framework could not be said to provide for the core needs of recognition and protection of same-sex couples in a stable and committed relationship. Same-sex partners are unable to regulate fundamental aspects of their life together, such as those concerning property, maintenance, taxation, and inheritance. Also, in the majority of situations, their relationship holds no weight in dealings with the judicial or administrative authorities.

The Court took note of the applicants’ and third-party interveners’ submissions indicating the increasingly hostile and homophobic attitudes towards sexual minorities displayed by high-ranking politicians from the then ruling party in Poland, including resolutions “counteracting LGBT ideology” passed by some local government bodies in Poland. Hateful statements had also apparently been made by one of the current judges of the Constitutional Court about the LGBTI community.

The case was supported by the Coalition for Civil Unions and Marriage Equality, which includes the NGO’s: Love Does Not Exclude, the Campaign Against Homophobia, the Polish Society for Anti-Discrimination Law, and the Helsinki Foundation for Human Rights.

According to coordinator for the Coalition, attorney Paweł Knut: “As of today, we start living in a new reality in which the roles have reversed. Same-sex couples no longer have to ask to be recognised in court or in an office. Thanks to the Court’s verdict, it is the state that has to start justifying why it has not yet put proper legal protection in place.”

ILGA-Europe were one of nine groups who intervened in the case. According to our Head of Litigation, Arpi Avetisyan: “Today’s judgment from the European Court is a crucial stepping stone in ensuring the rights of same-sex couples in Poland are duly recognised and protected.  No more ‘if’s’ and ‘but’s’ can justify delays in putting in place a framework for legal recognition of rainbow families.”

On Monday this week, Donald Tusk secured the support of the Polish parliament to head a new government, bringing to an end eight years of right wing government under the nationalist Law and Justice (PiS) party.

Mirka Makuchowska of the Polish LGBTI NGO, Campaign Against Homophobia has called on the new prime minister to meet with NGO’s in the light of the ruling. “After eight years of humiliation, a campaign of hatred against LGBT+ people by the government and the state apparatus, a face-to-face meeting with the Prime Minister is badly needed, not least so that Polish women and men can see that there is no longer a better and worse class of citizens, only one nation that we, LGBT+ people, are a part of,” she said.

Welcoming the judgement, one of the litigant couples, Michał and Wojciech, said: “We are hopeful that we may live to see the moment when the state finally acknowledges our 20-year relationship. This is important to us for practical reasons – security in our daily lives – but also for symbolic reasons, so we can finally feel that the state treats us on an equal footing with other citizens. Of course, we hope that the ruling coalition will take the verdict seriously and quickly fulfil the promises they made during the election campaign.”

The Polish government must now report to the Council of Europe Committee of Ministers on the implementation of the judgment.

What is this programme about and why are we launching it?

ILGA-Europe invites applications from LGBTI organisations and groups in Poland that see a concrete opportunity to propel their agendas and the work of the LGBTI movement in the country, and have a clear practical idea how to seize this opportunity but have been lacking dedicated resources and support to take action.

LGBTI rights and the situation of the LGBTI movement and community in Poland have been a matter of concern in recent times. The rise of anti-LGBTI forces and growing anti-democratic sentiments have created a climate of conflict and uncertainty, with a significant impact on the state of LGBTI rights and organising in Europe and Central Asia. The ongoing war in Ukraine has further complicated the situation, posing new challenges and threats to the LGBTI community in the region.

We believe that even in the most difficult contexts, there are still opportunities to make positive change – only that change might look different. For example, maybe you identified and established communication with someone involved with your local authorities but you lack dedicated resources to pursue this further; maybe a recent or upcoming event creates an opportunity to mobilise allies or join forces with other movements; or perhaps there is momentum in the community that can be seized to implement a solid strategy to grow the movement.

With this programme, we hope to give organisations the tools and support they need to seize the windows of opportunity they see and to pursue their goals effectively.

We will bring together six LGBTI organisations and groups in Poland with focused, opportunity-based change projects over a period of 18 months and will support their work through a combination of project funding, coordination and learning.

This call for applications is part of a bigger programme that ILGA-Europe launched earlier this year. This programme aims to support and lift up the work of LGBTI organisations that pursue change in hostile and/or rapidly changing environments and focuses on six countries in Central and Eastern Europe, including Poland.

It builds up on the long-term commitment and work of ILGA-Europe to support the parts of our movement operating in high-risk and challenging contexts. Where relevant, we will support connections, mutual support and learning between partner organisations across different countries participating in this programme.

We expect that the strategies and tactics explored by partners in this programme will in the future support and inform the work of the wider LGBTI movement in Europe and Central Asia in navigating challenging and high-risk environments while staying true to our missions.

What is the aim of the programme?

The programme is aimed at:

• Enabling focused, concrete and practical change initiatives that will advance the LGBTI equality agenda and movement in Poland
• Strengthening connections and mutual support and learning between LGBTI organisations working in high-risk, challenging or rapidly changing contexts

What does the programme entail?

The programme includes:

• Funding to LGBTI organisations in Poland based on an opportunity funding framework: we expect to make six grants to LGBTI organisations of 18,000 Euro each for a duration of 18 months in the fixed period of 1 September, 2023 – 28 February, 2025
• Learning, coordination and other capacity development activities to support partner organisations in pursuing their goals
• Sub-regional and regional experience sharing to amplify relevant experiences across the wider movement and to facilitate mutual support, where relevant

Who is this programme for?

This programme is for any LGBTI group or organisation in Poland that:

• Is connected to the LGBTI community and the rest of the LGBTI movement in Poland,
• Has identified concrete and practical opportunities to create change in the current context
• Has a clear idea how to address this opportunity but has been lacking support and resources to implement this vision

What can be supported?

This programme is not restricted to specific thematic priorities or types of strategies and activities; we want to offer support to issues, strategies and activities that Polish organisations themselves see as the most important and impactful right now.

Organisations can apply based on the thematic priorities, agendas, and needs that are relevant to them and their context, while situating the work and outcomes supported by the grant in the following framework consisting of five strategic directions:

1. Empowered and inclusive LGBTI communities
2. Strong, resourced, skilled, accountable and sustainable LGBTI organisations
3. Social acceptance and inclusion of diversity related to sexual orientation, gender identity, gender expression and sex characteristics in societies
4. A legal and policy framework which protects and promotes human rights and equality of LGBTI persons at local and national levels
5. Fair, just and equal societies and economies

When applying, you will need to indicate the strategic direction(s) that your work will contribute to.For further information about these strategic directions, please see ILGA-Europe’s Strategic Framework.

The programme can support a wide range of strategies and activities, including advocacy, campaigning, alliance-building, movement development and (informal) education.

The key considerations in selecting partners in the programme will be:

• Whether the proposed project is based on a strong and insightful analysis of an opportunity to advance the movement’s agenda right now
• Whether the proposed project offers a clear action plan and convincing vision of change, rooted in the wider context in the country and LGBTI movement’s work
• Whether the organisation has knowledge and capacity to bring this vision and plan into action

How to apply?

• To apply please submit your application and budget by Sunday, 25 June 2023, 23:59 (CEST/ Brussels)
• Applications are to be sent to both ruslana@ilga-europe.org and seka@ilga-europe.org
• Please use the application form and budget template for this call, both available below
• We expect to inform all applicants about the outcomes of the call during the first week of August
• We expect the projects to start on 1 September, 2023 and be completed by 28 February, 2025. Final reports will be due on 31 March, 2025

How will we be working together?

• This programme is designed as a close cooperation between ILGA-Europe and grantee partners that combines funding with learning, coordination and capacity development activities.

• Learning, coordination and capacity development activities are an integral part of the programme, which relies on active participation of partners in both planning and implementation. It will be designed by ILGA-Europe in consultation with grantee partners to direct this support where it is most needed. We will rely on grantee partners to inform this work and to show initiative in identifying relevant interest and needs of their organisations.

• During the programme, we will be regularly in touch through quarterly calls. These conversations are to discuss your work, project progress, opportunities, threats, learning and other support ideas and needs, and the state of expenditures, as well as for us to discuss our updates and plans with you. These conversations are also important for us as an opportunity to learn from the experience of our grantee partners and to timely identify important connections to the work and realities of others in the broader LGBTI movement.

• We also hope that partners will be open to contributing to regional and sub-regional learning and coordination spaces, where relevant, so that diverse strategies and experiences are amplified and feed into the work of the wider movement.

• You will need to report on the grant twice: interim narrative and financial reports halfway through the project and final narrative and financial reports one month after project completion.

Financial management of the grant

• This is a project grant. Only the costs that are linked to the implementation of the goals and activities of the call and your approved project are eligible. The grant needs to be spent and the costs need to be incurred in the project period, i.e. 1 September 2023 – 28 February, 2025. All costs need to be documented (contracts, payslips, timesheets, invoices, proofs of payment and similar documents).

• To manage this grant, your organisation needs to have an accounting and financial management system in place that allows to track income and expenditures per project/ funder. You will be asked to report in Excel and support your expenditures with records: contracts, procurement documents, invoices, timesheets, proof of payment, documentation of exchange rates.

• This funding is sourced from the EVZ Foundation and the Global Equality Fund, so your expenses and overall financial management system will need to be compliant with the source funders’ regulations. ILGA-Europe will provide clear guidance on how to ensure this.

• You will need to track your costs on a regular basis, and be able to generate the following information and reporting on your grant’s finances:
  • During quarterly calls we will discuss the state of your expenditures
  • Interim financial reporting will occur halfway through the project.  The interim financial report will be an Excel sheet with a list of expenses and the supporting documentation for these expenditures.
  • Final financial reporting will occur at the end of the project period. You will have to have spent 100% of that year’s budget, submit the list of expenditures and the supporting documentation for all the expenses.

ANY QUESTIONS?

All answers were returned via email and are published on this page, in order to support equal access to information among all applicants.

The submission covers developments in eight EU Member States as regards rule of law developments in the countries which have had an impact on the fundamental rights of LGBTI people and their democratic participation, with a focus on the past year (2022).

We have kept our inputs relevant to the content asked for by the consultation, and therefore we have not included all fundamental rights violations against LGBTI people, or all restrictions experienced by LGBTI civil society in the respective countries. We have only included them where there is a clear link to the issues of rule of law contained in the consultation.

Notably the submission covers the following topics:

• Manipulation of judicial processes to attempt to erode the human rights of LGBTI people and their access to justice;
• Politicians attempting to discredit and delegitimise the rulings of courts that uphold the rights of LGBTI people;
• Harassment and intimidation of LGBTI human rights defenders by law enforcement/prosecution services;
• Smear campaigns and negative narratives against LGBTI people, particularly where independence of media is threatened;
• SLAPPs against activists or journalists reporting on topics of public interest related to LGBTI;
• Censorship of LGBTI content;
• Tabling and adoption of laws aiming to reduce fundamental rights of LGBTI people;
• Tabling of laws aimed at restricting the functioning of civil society organistions;
• Arbitrary application of Covid-19 regulations to attempt to restrict the freedom of assembly of LGBTI people;
• Continued non-implementation of CJEU or ECtHR judgements which would improve the lives of LGBTI people;
• Anti-LGBTI discriminatory speech from political and religious leaders affecting public perception of LGBTI CSOs and creating an unsafe climate for LGBTI human rights defenders;
• Insufficient implementation of legal protection (e.g. protection against hate crime) for LGBTI people by responsible services, sometimes including Ombudspersons.

With EC infringement procedure against Poland still outstanding, the Court of Justice of the European Union (CJEU) has ruled that sexual orientation cannot be a reason to refuse or conclude a contract with a self-employed worker.

In December 2017, a self-employed worker and his partner published a music video on YouTube aimed at promoting tolerance towards same-sex couples. Shortly after the video went public, the worker’s shifts were unilaterally cancelled by his employer, Poland’s public television channel. Subsequently, no new contract for specific work was concluded with him.

For seven years up to release of the video, the freelancer had prepared audiovisual material for TP, a company that operates a nationwide public television channel in Poland. Considering himself to be a victim of direct discrimination based on his sexual orientation, the worker brought an action for compensation before the District Court of Warsaw. 

The District Court sought guidance from the CJEU, wanting to know whether the EU Directive 2000/78 on equal treatment in employment and occupational activities precludes Poland’s national legislation. That legislation allows an employer not to conclude or renew a contract with a self-employed worker, based on that person’s sexual orientation, on the basis of the freedom of choice.

The EU Directive 2000/78, which covers a wide range of occupational activities, establishes a general framework for combatting discrimination based on sexual orientation. Therefore, the court was tasked with deciding whether the situation the self-employed worker found himself in fell under the directive.

In its judgement delivered today, the CJEU holds that the Directive 2000/78 must be construed broadly, covering the access to any occupational activity, even if the worker is self-employed under contract with an employer.

The Court noted that the directive seeks to eliminate, on grounds relating to social and public interest, all discriminatory obstacles to access to livelihoods and to the capacity to contribute to society through work, irrespective of the legal form in which it is provided.

According to ILGA-Europe’s Head of Litigation, Arpi Avetisyan, “Today’s judgement is another important step forward in strengthening the protection against discrimination in the workplace. The judgement clarifies that EU law protects from discrimination based on sexual orientation also for self-employed and thus reinforces the protection against discrimination equally for the self-employed across the EU. The judgement is especially crucial for LGBTI people in those municipalities in Poland which still have anti-LGBTI resolutions or family charters in place. We hope that Polish authorities will take the necessary steps to implement this judgement swiftly and make it a reality.”

In the summer of 2021, the European Commission (EC) announced infringement procedures against Poland and Hungary for the violation of fundamental rights of LGBTI people and non-cooperation on the matter. While the Hungarian case has been forwarded to the CJEU, the Polish case, despite theoretically being on the same institutional timeline, has not been brought to the CJEU yet, and no up-date is available at this moment of time.

“For years now, we have been observing some EU member states consistently testing EU democracy and the protection of the rule of law and fundamental rights. The infringement procedures sent a clear signal that enough is enough, and the EC needs to see it through.”

Katrin Hugendubel, Advocacy Director, IlGA-Europe

According to ILGA-Europe’s Advocacy Director, Katrin Hugendubel: “In opening infringement procedures, the EC finally clearly stated that the Polish government is violating fundamental rights and that the EC cannot tolerate such violation and the unwillingness of the government to engage in sincere cooperation.

“Even if a few regions have withdrawn the so-called ‘LGBT free zone’ declarations, the discriminatory declarations still prevail on municipal, local and also regional levels. In order not to lose credibility, the EC needs to follow through the infringement procedure and to ensure that all such discriminatory resolutions are repealed.

“For years now, we have been observing some EU member states consistently testing EU democracy and the protection of the rule of law and fundamental rights. The infringement procedures sent a clear signal that enough is enough, and the EC needs to see it through.”

Today, the Advocate General of the CJEU has issued an opinion in the case of J.K. vs the Polish public broadcaster company TP, stating that discrimination based on sexual orientation in employment is not acceptable under EU law.

ILGA-Europe welcomes the Advocate General of the Court of Justice of the European Union’s (CJEU) opinion, published today in the case C-356/21, concerning the refusal to continue a contract of work with a self-employed person on the basis of that person’s sexual orientation violates EU law.

The applicant, J.K., is seeking compensation from the Polish public broadcaster TP for the breach of the principle of equal treatment on the grounds of sexual orientation in the form of direct discrimination in the context of the employment relationship between the two parties. J.K is openly a member of LGBTI community, and together with his partner, he engages in the activism for LGBTIQ+ rights, including running a popular YouTube Channel.

The Defendant is the Polish public broadcaster TP, a nationwide public TV network fully owned by the State Treasury. During 2010 – 2017, the employment relationship between the Applicant and the Defendant was based on regularly concluded, consecutive short-term contracts for specific work.

In December 2017, the Applicant and his partner released a Christmas video on their YouTube Channel, where they appeared among other members of the LGBTIQ+ community. Two days after the video was posted, the Applicant received an e-mail from his immediate supervisor cancelling his scheduled shifts. He was also informed that the Defendant was not planning to cooperate with the Applicant any longer. He was replaced by another employee, who had neither the qualifications nor the experience to perform the tasks previously performed by the Applicant.

In her opinion the Advocate General firstly confirmed that self-employment is covered under the Directive and by covering the area of ‘employment and occupation’, the “Directive aims at enabling citizens to realise their potential and earn their living by providing their work”. Furthermore, in addressing the issue concerning “conditions for access to self-employment”, the AG suggests that the Directive covers both initial stage of concluding a contract, but also the provision relating to the termination of contractual relationship.  At all stages, discrimination based on sexual orientation is not acceptable.

According to Arpi Avetisyan, Head of Litigation with ILGA-Europe: “Advocate General Capeta’s opinion is a welcome confirmation that discrimination based on sexual orientation has no place under the EU Directive, including for self-employed workers. We hope the Court will follow the Advocate General’s opinion and build on it so that EU law in this area protects self-employed workers ensuring equal access to employment.  Freedom to choose a contracting party does not imply freedom to discriminate.”  

Read here the Advocate General opinion

The Court of Justice of the EU has stated that birth certificates issued in an EU country must be recognised across the EU, and that EU countries should protect the freedom of movement of rainbow families.

On June 24, the Court of Justice of the European Union (CJEU) issued a reasoned order establishing that when an EU country has recognised two persons of the same sex as parents of a child, then the EU country of which that child is a national, should issue identity documents to that child with both parent on them, and all EU countries should protect the right to freedom of movement of the child and their family. This is a confirmation of a previous landmark judgment, that of Baby Sara.

Poland has been told that it must now provide the child known as Baby Sofia, born in 2018 to Irish and Polish mothers, with identity documents and guarantee her and her parents the right to move and reside freely in the country.

The case arose when Poland denied citizenship to baby Sofia, daughter of two mothers, Kashka, from Poland, and Sinéad, from Ireland. In 2018, Sofia was born in Spain, where the couple had gone to receive IVF treatment. Spanish authorities issued a birth certificate with the name of the two mothers but not identity documents, as children of foreigners are not automatically entitled to citizenship in the country.

At that time, in Ireland, two women could not be recognised as parents on a birth certificate. In the eyes of Irish law, the mother was the woman who gave birth to the child. As Kasha, the biological mother was not Irish, Sofia couldn’t apply for citizenship in Ireland either.

In Poland, where rainbow families are still not recognised, authorities refused to recognise Sofia’s birth certificate, depriving her of access to citizenship and identity documents. For over two years Sofia remained without any documentary proof of any nationality, and therefore at risk of statelessness. The family was could not leave Spain, as Baby Sofia couldn’t travel without documents. Her mothers had to move house every couple of months, as they were running out of savings.

Now, the CJEU has stated that an EU country is obliged to provide identity documents to a child when the child, being a national of the country, has a birth certificate issued in another member state that designates two persons of the same-sex as their parents. All EU countries must respect the documents that allow the child and their family to exercise their right to move and reside freely with the territory of the EU. These are protections granted in Articles 20 and 21 of the Treaty on the Functioning of the European Union (TFEU) and Articles 7 and 24 of the Charter of Fundamental Rights of the EU, among others.

With this reasoned order, the CJEU has confirmed the landmark judgment delivered in the Baby Sara case last year, which arose when a same-sex couple were refused a birth certificate in Bulgaria for their daughter, also born in Spain. Poland must now provide Baby Sofia with identity documents and guarantee her and her mothers the right to move and reside freely in the country.

In the meantime, Spain issued identity documents to Sofia in March 2019. Spanish law foresees a safeguard measure that allows children born in its territory who would otherwise be stateless to acquire Spanish nationality at birth. The couple also applied for Irish citizenship for Sofia through naturalisation over two years ago, but they have not received any feedback since March 2020. The Children and Families Relationship Act, which allowed both women in a same-sex couple to be automatically recognised on their child’s birth certificate, was enforced in Ireland in May 2020.

Welcoming the order, but concerned about its implementation, the lawyer for Baby Sofia’s parents, Anna Mazurczak said: “We are, of course, happy that the Court has applied the reasoning from the Bulgarian case in a Polish case. However, the Court has not been as straightforward as we had hoped. We wanted to make sure that Poland had the obligation not only to issue an ID but also to indicate the first names of same-sex parents on it.

“Through the CJEU’s reasoned order, we hoped to convince the Supreme Administrative Court of Poland that issuing an ID with one mother’s name is not enough. The CJEU has already held that different last names contained in documents issued by different member states can cause an obstacle to the right of freedom of movement. In my opinion, the different parent names on the ID card can violate freedom of movement even more.”

Recently, a draft amendment to the Family Code was submitted for public consultation in Poland, where marriage equality, same-sex registered partnerships and co-parent recognition are not recognised. While it could improve the situation of children of same-sex parents born abroad by recognising their birth certificates, it also presents a discriminatory approach towards rainbow families. There is no clear timeline for the development and implementation of these amendments.

According Arpi Avetisyan, Head of Litigation at ILGA-Europe: “The CJEU’s reasoned order is a welcome confirmation of the rights of children in rainbow families. The Polish and Bulgarian cases that have reached the CJEU, Baby Sofia and Baby Sara, are not isolated. They show the tip of the iceberg of the numerous examples of the hardships experienced by rainbow families in the EU.

“We hope that the upcoming European Commission’s legislation on parenthood recognition, by incorporating the CJEU rulings, will provide a framework for removing obstacles to freedom of movement for rainbow families. What is crucial at the present, however, is that Poland and Bulgaria put in place necessary procedures for implementing CJEU’s judgment and reasoned order as soon as possible.”

Meanwhile, in Bulgaria, the ruling in Baby Sara’s case has not yet been implemented. While on 16 May, Sofia’s Administrative Court, which had asked the CJEU for clarification in this case, ruled that Capital Municipality, Pancharevo District must issue a birth certificate with both of Sara’s mothers on it, the decision was appealed by the Municipality on 13 June. This means that to date, Sara is still without documents and at risk of statelessness.

Today, the case of J.K. vs the Polish public broadcasting company TP, in which the applicant is seeking compensation for the discontinuation of his freelance contract after he appeared in a YouTube video with his same-sex partner, is being heard for the first time at the Court of Justice of the European Union.

Today, the CJEU is holding a preliminary hearing in the case C-356/21, to decide whether the refusal to continue a contract of work with a self-employed person on the basis of that person’s sexual orientation violates EU law.

In the case, the applicant, J.K., is seeking compensation from the Polish public broadcaster TP for the breach of the principle of equal treatment on the grounds of sexual orientation in the form of direct discrimination in the context of the employment relationship between the two parties.

The Applicant is openly a member of LGBTI community, and together with his partner, he engages in the activism for LGBTIQ+ rights, including by running a popular YouTube Channel.

The Defendant is the Polish public broadcaster, a nationwide public TV network which employs over 2 000 workers, fully owned by the State Treasury, intended to fulfil a public service mission. During 2010 – 2017, the employment relationship between the Applicant and the Defendant was based on regularly concluded, consecutive short-term contracts for specific work.

In December 2017, the Applicant and his partner released a Christmas video on their YouTube Channel, where they appeared among other members of the LGBTIQ+ community. Two days after the video was posted, the Applicant received an e-mail from his immediate supervisor cancelling his scheduled shifts. He was also informed that the Defendant was not planning to cooperate with the Applicant any longer. He was replaced by another employee, who had neither the qualifications nor the experience to perform the tasks previously performed by the Applicant.

Three Member States (Belgium, the Netherlands, and Portugal) and the European Commission, have filed written statements in support of the Applicant. All of them argue that the Member States may not exclude from the scope of Directive 2000/78 in their national law, the freedom of choice of the party to contract, to the extent that it is based on sexual orientation.

Poland, on the other hand, argues that the termination of contract and refusal to conclude a further contract with a self-employed person, even if based on that person’s sexual orientation, does not violate EU law.

According to Arpi Avetisyan, Head of Litigation with ILGA-Europe: “With this case, the CJEU has the opportunity to clarify the scope and practical applicability of the principal of non-discrimination based on sexual orientation, in the field of employment and occupation. This case could strengthen the standard and confirm that the fact that a person has been hired as a self-employed person is irrelevant for the purposes of protection from discrimination, both regarding access to employment and its termination.

“Otherwise, to allow limitation the scope of Directive 2000/78 would legitimise discriminatory choices of employers and contracting parties, and could encourage businesses to work more frequently with self-employed workers, as outside the framework of employment contracts, they would be free to discriminate.

“Any arguments of Poland in the present case are in fact contrary to the general principle of non-discrimination based on sexual orientation. Moreover, also under the Directive that self-employed persons would be less protected than other employees.”

An Urgent call on the European Commission and the Council of europe to refrain from approving recovery funds to the governments of Poland and Hungary, and to provide direct support to local authorities, civil society and human rights defenders providing for refugees of the war.

We are deeply concerned that the European Commission and the Council consider unblocking the EU Recovery and Resilience Facility funds to the governments of Poland and Hungary, and that the Commission talks about further delaying the activation of the rule of law conditionality regulation in their regard, due to the current political and humanitarian crisis following Russia’s military invasion of Ukraine on 24 February.

Revising the critical decision to suspend approval of the EU recovery funding for Poland and Hungary now, would send the wrong political signal to the governments of Poland and Hungary who have made no progress in course-correction of laws, policies and practices undermining checks and balances and the overall rule of law architecture. Such a decision also risks setting a dangerous precedent and undermines the EU rule of law conditionality mechanism, designed  to protect the EU budget in the long run.

As organisations working across Europe to defend fundamental rights and the rule of law, we call on the European Commission and the Council to refrain from approving recovery funds to the governments of Poland and Hungary in haste without genuine and solid guarantees that the rule of law concerns, notably regarding the lack of independence of the judiciary and anti-corruption democratic safeguards, will be resolved.

The war in Ukraine should not be used as a pretext to weaken the rule of law mechanism and let any Member State get away with serious rule of law violations. If anything, this war shows the very real dangers that come with a country dismantling the rule of law and democratic oversight. This is not the time to set aside concerns about the rule of law and respect of fundamental rights in EU Member States. Unblocking funds whereas the concerns in the countries remain as serious as ever, would be detrimental.

The EU has a legal obligation to mitigate the risks of EU funding being misused, and hold firm on the need for further negotiations before releasing the recovery funds, while at the same time triggering without further delay, the conditionality mechanism. Article 7.1 TEU procedures must continue as Article 2 TEU continues to be undermined.

Neither Poland, nor Hungary, have made meaningful progress to restore the checks and balances necessary to uphold the rule of law and reinstate an independent judiciary. If the EU allows the Polish government to ignore the CJEU ruling concerning the Disciplinary Chamber of the Supreme Court, the risk that independent civil society in Poland, which has been the main respondent to the Ukrainian refugee crisis, will be further criminalised and forced to halt their activities is very real.

Contrary to demonstrating positive reforms the Polish Parliament tried to amend a law to ensure impunity for authorities during the Ukraine crisis. In addition, a legislative proposal, attempting to ensure that government officials could not be held accountable for their disposition of emergency funds, was narrowly defeated, by only one vote in the Polish Parliament.

Directly support local authorities, civil society and human rights defenders providing for refugees of the war

The war in Ukraine has already forced over three million people to leave Ukraine to seek safety. The support of millions of people poses a major challenge involving the provision of shelter, food, clothing, childcare, health care, psychological support, legal aid, and other essential services.

Civil society, local authorities, citizens and human rights defenders have responded rapidly, providing the vast majority of services to those fleeing. By contrast assistance from central government in Hungary and Poland has been limited. As further arrivals are anticipated and longer term support is required, direct financial assistance to civil society is urgent, to avoid a fast-developing humanitarian disaster.

The government in Poland is not just falling short on its humanitarian duty and the local relief effort. It is under suspicion of gross mismanagement of both EU and Polish funds designated to support vulnerable groups.

There is undoubtedly a serious risk that making emergency means available to the government will affect the management of EU funds contrary to their purpose and in violation of generally accepted standards of responsible management. There is also a serious risk that if allowed to pass through the government, such emergency means may be abused for political ends, and inefficiently spent for its purpose, 41 Polish civil society organisations warn. We share their concerns.

This is not the moment to set aside rule of law conditionalities. In Hungary, the government’s continued failure to execute the CJEU’s judgment establishing that the so-called ‘Stop Soros law’, criminalising support to asylum seekers and refugees, violates EU law and should be repealed.

The law exposes civil society organisations and human rights defenders on the frontline providing assistance to refugees fleeing Ukraine to serious risks, including prison sentences. The EU cannot allow the Polish government to continue to reject the rulings of the CJEU concerning the Disciplinary Chamber and risk further attacks. Scrutiny is required.

We call on you as Presidents of the European Commission and the Council to hold strong on the fight for freedom, democracy and respect for fundamental rights and rule of law that Russia’s invasion in Urkaine has put back at the centre of our lives. Emergency support can be made available through other ways and our organisations are ready to meet and discuss how we can support the European Commission in ensuring that emergency funds reach those who urgently require assistance.

While Poland keeps attacking LGBTI people and their rights, ILGA-Europe have signed a joint letter along with 86 other NGOs asking EU Ministers to take action.

ILGA-Europe, along with 86 other NGOs, have written a letter to EU Ministers to act decisively on Poland’s rule of law crisis, ahead of the upcoming General Affairs Council meeting on Tuesday 22 February.

The letter addresses the major rule of law concerns in Poland, including media freedom, civic space, SRHR and LGBTI rights. It outlines how systemic rule of law violations have enabled Poland to directly attack the human rights of LGBTI people and their defenders.

In it, we all call for decisive action under Article 7 to protect rule of law, democracy and fundamental rights in Poland. This comes in light of the decision of the Court of Justice of the European Union (CJEU) on 16 February, which confirms the legality of the EU’s rule of law conditionality.

According to the judgement, member states now have the tools to properly and effectively defend the rule of law in Poland. We call for these tools to be used immediately and unequivocally.

Read the letter to EU Ministers.

Further information:

• Find out more about CJEU judgment of February 16
• Learn more in our submission to European Commission’s 2022 Rule of Law Report.

Expert contributions were provided by organisations PROUD (Czech Republic), LGBT komiteen (Denmark), Inter-LGBT (France), Háttér Társaság (Hungary), KPH & Atlas of Hate (Poland), ACCEPT (Romania), and Legebrita (Slovenia).

The developments encompassed in the submission point to systematic attacks on the fundamental rights of LGBTI people enabled by the weakening of rule of law and democratic structures. We have not included all fundamental rights violations against LGBTI people, or all restrictions experienced by LGBTI civil society in the respective countries, only those which are relevant to the respective headings of the consultation, where there is a clear link to rule of law.

Notably the submission covers the following topics:

• Political interference or bias in court cases related to LGBTI rights, in particular where independence of the judiciary is under attack;
• Anti-LGBTI bias, smear campaigns and censorship of LGBTI content, in particular where media freedom is under attack;
• Funding restrictions or discriminatory distribution of public or EU funds, affecting LGBTI organisations;
• Arbitrary application of Covid-19 regulations to attempt to restrict the freedom of assembly of LGBTI people;
• Covid-19 emergency measures affecting the process of preparing and enacting laws (exclusion of LGBTI CSOs in consultation phases or even fast-track adoption of legislation directly attacking LGBTI people);
• Non-implementation of CJEU or ECtHR judgements which would improve the lives of LGBTI people;
• Judicial harassment of LGBTI activists (in particular SLAPPs);
• Insufficient follow-up of anti-LGBTI hate crime cases;
• Anti-LGBTI discriminatory speech from political and religious leaders affecting public perception of LGBTI CSOs and creating an unsafe climate for LGBTI human rights defenders (in some cases leading to attacks on CSO offices, employees and volunteers).

As 2021 comes to an end, we have collected some of the moments, events and trends that have marked the year in the latest episode of The Frontline, ILGA-Europe’s podcast about LGBTI activism and lives in Europe and Central Asia. Read here some of the episode’s highlights and find out reasons to stay hopeful in 2022.

2021 has been a year of further lockdowns, of new strains of the COVID virus, and the uncertainty they have brought, and most of all, enormous reverberations of the unprecedented events of 2020 on people’s lives. For the LGBTI movement and communities in Europe, 2021 has also been the year of the growth of a perceived east-west divide in Europe over LGBTI rights, infringement procedures taken by the European Commission against Hungary and Poland because of their anti-LGBTI laws and programs, a sharp rise in the demonisation and isolation of trans people from the women’s movement, and an overall rise in authoritarian regimes seeking to instrumentalise LGBTI lives to limit the rights of others. So, it’s perhaps strange that our guest in this episode, ILGA-Europe’s Executive Director Evelyne Paradis finds great hope for the LGBTI movement amid the storm.

How has COVID-19 continued to affect our communities?

For LGBTI communities, visibility is of top importance. In 2021 we’ve continued to reinvent ourselves while facing new challenges such as building alliances in the digital space with people you don’t know.

The most marginalized ones in our communities have found themselves particularly isolated. On the flip side, many LGBTI activists and organisations across the region have been very resourceful and creative to meet the needs, which comes with a cost because it’s a lot of work.

“I hope there’s going to be of lightness in 2022 for activists,” says Evelyne Paradis.

Is there a divide between the east and the west of Europe?

This year we’ve seen in media and elsewhere a growth of a perceived east-west divide, also when it comes to LGBTI issues. “It is not a real divide, but it is a divide,” she says. “There is a politically driven effort to create multiple divides”.

History shows that creating an ‘other,’ creating an enemy, can help other purposes. In 2022 the work will continue to be to stay attentive in order to not fuel that perceived divide.

Infringement procedures against Poland and Hungary

“We’re in a moment of hope with the EU,” says Evelyne Paradis. “The EU is taking a lot more concrete and bold actions based on their values.” In July, the European Commission announced infringement procedures against Hungary, concerning the censorship of a children’s book portraying LGBTI characters and the prohibition of the inclusion of LGBTI people in material in schools or in media for under-18s, and Poland, concerning a refusal to clarify whether LGBTI people are discriminated against in the labour market in the country’s so-called LGBT Free Zones

A year ago, to think about infringements seemed ambitious. Starting infringement procedures was important for LGBTI communities in these countries too, and the people supporting them — in that sense there’s no divide. Although we have to be careful not to create an “us vs. them” divide, Evelyne Paradis explains, we’re also in a moment when we have to assert and act in accordance to the values that hold us together.

However, Poland and Hungary are not anomalies. They are only the tip of the iceberg as scapegoating LGBTI minorities is spreading to other places. We are at a moment when human rights cannot be taken for granted.

“Times are hard for LGBTI people in the region, not just in Poland and Hungary,” she says. ILGA-Europe has reported a lot of LGBTIphobic violence this year. Now it’s the time for politicians to do the right thing.

Where do we find hope?

“I find hope in the reaction that the publication of our Rainbow Map prompted,” says Evelyne Paradis.

The message “it’s time to reboot” was heard by governments. Politically it feels that the situation is so bad that there’s no option but to act. Many politicians and representatives have contacted ILGA-Europe along 2021, and “it’s our job to tap into that opportunity.”

ILGA-Europe statement on gender

On March 8 ILGA-Europe published a statement on gender, to reaffirm our commitment to standing up against any discourse aimed at negating the rights of some people.

The decision came from observing how harsh the situation for trans people and communities was becoming, but also “from the deep sadness at observing how the beauty of human rights language, the beauty of feminism was been used and abused to divide groups and communities,” says Evelyne Paradis.

It was also a way of saying to trans individuals that we’re here, that a vision of gender that brings us all together is at the core of ILGA-Europe’s work.

Fighting for democratic rights

For a while now, the fight has moved again to be one of fight for democratic rights and freedoms, because in some parts of the region the authoritarian tendencies are very strong again. The freedom to be in the public space with no fear of arbitrary arrests cannot be taken for granted by LGBTI people and communities, as we’ve seen in the METU Pride trials in Turkey.

The clampdown of core democratic spaces is very real and that shapes the work ILGA-Europe does, which is making sure that groups can come together in the face of repeated attacks.

Activists groups need to reconvene, “they need the comfort of coming together.” In this sense, the COVID-19 pandemic is not helping. Spaces like ILGA-Europe’s Annual Conference, that this year was moved for the second time to the digital sphere as an alternative to an in-person meeting, are spaces of restoration.

Strategic litigation as a way forward for LGBTI rights

It’s been a reason for hope to see national and European courts moving in the right direction for some years now, Evelyne explains. Some successful examples in 2021 have been METU Pride trial and Baby Sara case.

However, not because there’s a judgement it means there’s going to be a change anytime soon. There are two caveats to consider. First, it is quite telling of the current context that LGBTI people have to go to court. Second, court judgments, as positive as they can be, rely on governments to implement them. Three years after the landmark judgment issued by the CJEU against Romania, recognising that the term spouse includes same-sex spouses under EU freedom of movement laws, Romania has not implemented the Coman case yet.

“We’ve had to do a lot more work,” she says. “It’s good to see that we can use the courts more but it also doesn’t end there.”

ILGA-Europe’s Gathering Online

It was great to see that people coming together at the Gathering Online despite the screen fatigue. As in 2020, we hosted an online version of Europe and Central Asia’s LGBTI largest conference in October. The main topics discussed along the week were racism, poverty and other forms of structural inequalities that affect the movement, the political context in which we operate, and the creative responses to it.

The main message, says Evelyne Paradis, was to go back to the essence, to the belief in the importance of creating a world that is fair and just, which is the reason why all of us keep standing up for human rights and the LGBTI movement.

It is also a week when solidarity was embodied. “This is where probably I get the most hope, that we are collectively getting into that space of really seeing each other as human beings.”

Some hopes for 2022

“My hope is that as a movement we grow in sincere solidarity, that institutions and governments in Europe continue to find the courage to do the right thing and act.”

Evelyne Paradis also hopes that more and more allies and coalitions become stronger and stronger, “that we turn the tides around.”

“It’s our priority to make sure that LGBTI organisations can do their work,” she concluded.

Presented by ILGA-Europe, The Frontline is a podcast about LGBTI activism and lives in Europe and Central Asia. Deep-diving and analysing from a unique and informed perspective, The Frontline aims to bring you to the core of queer activism and give you an understanding on the complexities of what’s happening, why it’s happening, the wins and the losses, the challenges and commonalities, and the extraordinary ways in which the work of those on the frontlines continues in a rapidly changing world.

Over the past number of years, LGBTI people have come under increasing attack from ruling politicians, religious leaders and other public figures in Poland. This has come in the form of dangerous and false framing of LGBTI people as a threat to children, and as a threat to Christianity.

We have created and will be updating this abbreviated timeline of what’s been happening over the past two years with the rise of official homophobia and transphobia.

The European Court of Human rights has ruled that the refusing a mother custody of her youngest child on the grounds of her sexual orientation to be discriminatory and a violation of her right to private and family life.

In a judgement released today on the case of X. v Poland, the European Court of Human rights found the refusing a mother custody of her youngest child on the grounds of her sexual orientation as discriminatory and a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the applicant.

The case concerned custody arrangements of applicant’s youngest child following her divorce. The main consideration of the courts was that the applicant, the mother of the child, was in a relationship with another woman. She alleged that the courts had acted in her former husband’s favour because of her same-sex relationship.

The Court found that there was “a difference in treatment between the applicant and any other parent wishing to have full custody of his or her child”.  Moreover, the Court considered that the discriminatory reference to the importance of a male role model for the boy’s upbringing, which was one of the decisive factors in the dismissal of the applicant’s requests for custody, had outweighed the other arguments: child’s young age, strong bond with the applicant and wellbeing while living with his mother. This reliance on the male role model was discriminatory.

Taking into account that throughout court proceedings, applicant’s sexual orientation and relationship with another woman had been repeatedly referred to as a ground for refusal,  the Court concluded that, in “refusing to grant the applicant full parental rights and custody rights in respect of [the youngest child], the domestic authorities made a distinction based solely or decisively on considerations regarding her sexual orientation, a distinction which is not acceptable under the Convention.”

ILGA-Europe had intervened in this case jointly with the International Court of Justice (ICJ), the International Federation for Human Rights (FIDH) and Network of European LGBTIQ* Families (NELFA).

According to Arpi Avetisyan, ILGA-Europe’s Head of Litigation, “Today’s judgment confirms the rights of LGBTI parents to their children on an equal footing as everyone else. The best interests of children to receive parental love and be cared for should prevail in custody considerations, irrespective of parents’ sexual orientation.”

The applicant was awarded EUR 10,000 in respect of non-pecuniary damage. 

FIND MORE ABOUT:

• our strategic litigation work
• our third party interventions before the ECtHR

Ben Hunt’s first year on the job as BBC LGBT Correspondent* has been an unprecedented one, with the rise of anti-LGBT hatred in Europe, marked by stark developments in Poland and Hungary.

In this episode of The Frontline, Ben sits down with us to talk about the relationship between the media and LGBTI issues, why some stories get all the attention to the detriment of others, the rise of anti-trans voices in newspapers and broadcasting, and ways we might get the real diversity of LGBTI stories picked up.  

Listen below or click here to listen and subscribe to The Frontline on your favourite podcast platform. 

* Since the publication of this podcast, Ben Hunte has resigned from the BBC to join Vice News

According to ILGA-Europe, the infringement procedures announced by the European Commission today show that the EU has come to a tipping point; after years of governments testing how far they can go, the European Commission has taken a clear step to hold Hungary and Poland accountable on the rule of law and fundamental rights.

Today, July 15, the European Commission announced that it will take landmark infringement procedures against both Hungary and Poland. The procedures against Hungary concern the censorship of a children’s book portraying LGBTI characters, and the legislation that entered into force last week, which prohibits the inclusion of LGBTI people in material in schools or in media for under-18s. The procedures against Poland concern a refusal to clarify whether LGBTI people are discriminated against in the labour market in the country’s so-called LGBT Free Zones .

According to ILGA-Europe, the leading LGBTI rights organisation in Europe, the infringements are  a clear message to all member states that they are bound by their membership to respect the core principles of the European Union.

The first infringement against Hungary is in respect of a book of reimagined fairytales with diverse characters entitled, Wonderland is for Everyone, which was published in September 2020. The book became an immediate target of homophobic attacks by politicians in the ruling Fidesz party, including the Hungarian Prime Minister Viktor Orbán, calling it “homosexual propaganda”. In January, the Hungarian government ordered the publisher of Wonderland is for Everyone to print disclaimers identifying books containing “behaviour inconsistent with traditional gender roles”, thus restricting the right to freedom of expression and the right to non-discrimination as enshrined in Articles 11 and 21 of the EU Charter of Fundamental Rights and breaches the Unfair Commercial Practices Directive. 

The second Hungarian infringement is in relation to legislative amendments voted in on June 15, banning the “portrayal and the promotion of gender identity different from sex at birth, the change of sex and homosexuality” for persons under 18 and for public servcie advertisement even without any age limit. The language surrounding this ban has been introduced into the following Hungarian legislation: the Child Protection Act, the Family Protection Act, the Act on Business Advertising Activity, the Media Act, and the Public Education Act, clearly breaching  a number of EU laws and violate international human rights norms, in particular restricting cross-border information society services, and the Treaty principles of the freedom to provide services (Article 56 TFEU) and the free movement of goods (Article 34 TFEU), by failing to demonstrate that the restrictions are necessary, non-discriminatory, and proportionate and pursue a legitimate interest.

On the day the Hungarian legislation came into force, the European Parliament voted in favour of urgent legal action against its member state, saying that the law was “another intentional and premeditated example of the gradual dismantling of fundamental rights” in the country.

The infringement against Poland has been launched because of the non-cooperation of Polish authorities in clarifying the question in how far the so-called Family Charters and LGBT Free Zones, which over 100 Polish local governments have adopted since 2019, might lead to discriminationon the grounds of sexual orientation and the Charter of Fundamental Rights, specifically ensuring non-discrimination in access to and in the labour market in line with EU anti-discrimination law, and also regarding management of the Structural and Investment Funds. 

According to ILGA-Europe’s Advocacy Director, Katrin Hugendubel: “By opening infringement procedures, the EC clearly states that the Polish and Hungarian governments are violating fundamental rights and, as they are unwilling to engage in sincere cooperation, and is now stepping up and opening a clear procedure to ensure the full respect of the Treaties and EU legislation. This could ultimately result in the EC bringing both countries in front of the Court of Justice of the European Union (CJEU).”

Over the past two years, ILGA-Europe has been advocating at the highest EU levels for sanctions against Poland and Hungary, as the governments of both countries have increasingly stoked anti-LGBTI hatred, thereby sewing political and societal division. ILGA-Europe stated concerns that this instrumentalisation of a vulnerable minority, which was first employed by Vladimir Putin in 2013 with the Russian anti-propaganda law, was providing an example to the governments of other EU member states leaning in this direction, who saw Poland and Hungary acting with impunity in violation of EU directives and core values.

Executive Director of ILGA-Europe, Evelyne Paradis said: “For years now, we have been observing some EU member states consistently testing EU democracy and the protection of the rule of law and fundamental rights. The infringement procedures announced today send a clear signal that enough is enough. EU member states can no longer act against human rights with impunity, nor can governments go on instrumentalising minorities for political gains. They have to and will be held accountable.” 

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Background to infringement on Poland:

In September 2020, ILGA-Europe together with Polish LGBT rights organisations KPH (Campaign Against Homophobia) and Fundacja Równo?ci (The Equality Foundation) submitted a legal complaint to the European Commission setting out how these declarations introduce discrimination against LGBTI people and thus breach the European Council Directive (2000/78/EC), establishing a general framework for equal treatment in employment and occupation, as well as the Charter of Fundamental Rights Article 15 on Freedom to choose an occupation and right to engage in work, and Article 21 on non-discrimination. Based on the complaint, the EC has requested information from the Polish authorities in February this year, which to this day has not been provided, thereby constituting failure to comply with the principle of sincere cooperation under Article 4(3) TEU.

Further information:

• Read more about Hungary in our Rainbow Map and Annual Review. 
• Read more about Poland in our Rainbow Map and Annual Review. 

For further comment, contact Ana Muñoz, ILGA-Europe: ana@ilga-europe.org and +32 493 35 60 55

In the light of increasing attacks on LGBTI rights, stagnation of legal progress and clear lack of implementation of the rights of LGBTI people in Europe, ILGA-Europe have been calling for action from EU member states and all EU institutions for some time now. This week’s developments seem to suggest that the European Commission and a large number of member states finally heard that call. Time to keep up the action and follow through on its values and responsibilities as guardians of EU law, keeping the important commitments made this week.

Ahead of the EU’s General Affairs Council, where Article 7 procedures against Hungary and Poland were to be discussed on 22 June, ILGA-Europe has been informing EU ministers about systematic breaches of EU law committed by Hungary and Poland, which impact on LGBTI rights and the lives of LGBTI people.

Specifically, as concerns Hungary, over the last year we have been seeing increasing legislative attacks against LGBTI rights, such as the banning of legal gender recognition in May 2020, the introduction of transphobic provisions to the Hungarian Constitution in December 2020, the restriction of adoption by non-married persons (same-sex couples cannot marry in Hungary) also in December 2020, and the abolishment of the Equal Treatment Authority in January 2021. We had already seen the banning of depiction of LGBTI people in advertisements (fining of Coca-Cola in 2019), books (Labrisz book ordered to have under 18 disclaimer in January 2021), and the media (fining of RTL in March 2021).

However, Hungary went a step further on 15 June 2021, by adopting amendments banning the “portrayal and the promotion of gender identity different from sex at birth, the change of sex and homosexuality” for persons under 18, and applying these to the Child Protection Act, the Act on Business Advertising Activity, the Media Act, the Family Protection Act and the Public Education Act (see more in our press release).

With this vote, Hungary has adopted a Russian style anti-propaganda law that will effectively ban the representation or communication about diverse sexual orientations, gender identities and sex characteristics in the Hungarian public sphere, as well as specific places such as in schools. This clear violation of EU principles set out in the Charter of Fundamental Rights and the Treaties, as well as at least two EU directives, was the straw that broke the camel’s back. At the General Affairs Council on 22 June, 17 Member States signed a statement condemning the anti-LGBT amendments in the new Hungarian law and calling for the European Commission to act. A number of Ministers also gave statements in person at the beginning of the Council, reaffirming that these amendments run counter to EU law and the principles of non-discrimination.

On 23 June, the President of the European Commission gave a press statement calling the amendments a “shame” and saying that they go against the fundamental values of “human dignity, equality and respect for human rights”. President Ursula von der Leyen promised to “use all the powers of the Commission to ensure that the rights of all EU citizens are guaranteed.” Later in the day European Commissioners for Justice and the Internal Market sent a letter to the Hungarian Justice Minister, raising concerns over the potential breach of the EU’s Charter of Fundamental Rights, TFEU, Audio-Visual Media Services Directive and the e-Commerce Directive. The Hungarian government has been given the date of 30 June to respond to the Commissioners’ concerns. If the Hungarian law enters into force, the European Commission “will not hesitate to take action in line with its powers under the Treaty” the letter closes.

Yesterday, on the 24 June, 16 EU leaders reiterated their support for LGBTI people and their equal rights in an open letter to the President of the European Commission, the EU Council, and the EU Council Presidency. On the same day, the Hungarian President signed the law (it will come into force within two weeks from now).

After a week of strong political statements, public outcry and the waving of rainbow flags, the European Commission has clearly signalled its willingness to hold Hungary accountable for its breach of EU law in flagrantly discriminating against LGBTI people and finally follow the call for action, including infringement procedures. Building on the European Commission’s LGBTIQ Equality Strategy 2020-2025 and renewed public commitments, including the EP resolution declaring the EU an ‘LGBTIQ freedom zone’, LGBTI people across the EU are still waiting for the Commission to take a clear stand towards Member States and use all tools available: negotiations, infringement procedures, the rule of law reports, ongoing Article 7 procedures, as well as funding instruments. ILGA-Europe will now work to ensure that this week will be a game changer and that real action will follow regarding Hungary, but also the so-called Polish ‘LGBT free zones’, and the non-implementation of the Coman judgement in Romania. The European Commission, through its rule of law mechanism, conditionality mechanism and all other tools at its disposal, needs to take all these threats and rollbacks on rights seriously in all Member States. We cannot allow these situations to further deteriorate. All LGBTI people in the EU should be protected and guaranteed equal rights.

And it is not only up to the EC to act. Member states also need to follow through, calling out LGBTI rights violations across Europe, while restarting and seeing through the necessary legislative steps in their own countries.

The large wave of solidarity and political commitments this week is as welcome as it is overdue, but words need to translate into action so that LGBTI people across the entire European Union can be both respected and protected as equal citizens. ILGA-Europe pledges to keep on working to support and inform the European institutions so that this can become a reality and the tide of backward sliding on LGBTI rights, dignity and equality in some EU countries can turn back in the right direction.

The ambition is right, but the reality is very different, says leading European LGBTI rights organisation

In response to the proliferation of over 100 so-called ‘LGBT-Free zones’ in Polish municipalities, the European Parliament today is debating a resolution declaring the EU an LGBTIQ Freedom Zone. It’s a strong symbolic gesture, but clear action needs to follow to make this a lived reality, according to ILGA-Europe.

The European Parliament (EP) in this weeks plenary session will debate and adopt a Resolution declaring the European Union (EU) an LGBTIQ Freedom Zone. Europe’s leading LGBTI organisation, ILGA-Europe, say much work needs to be done to align the resolution with the truth of LGBTI people’s lives in Europe.

According to Katrin Hugendubel, Advocacy Director with ILGA-Europe: “It is great to see the European Parliament wants the EU to be an ‘LGBTIQ Freedom Zone’, in other words a space where LGBTIQ persons can be who they are and love whom they love, free and safe. At ILGA-Europe, our day-to-day work reminds us very clearly that a lot still needs to be done to makes this a reality across the EU. We need to see more concrete action, from the European Commission, the European Parliament, the European Council, as well as national governments and policy-makers, and from regional and local authorities.”

Last month, ILGA-Europe published its ‘Annual Review of the Human Rights Situation of LGBTI People in Europe and Central Asia 2021’, clearly setting out how far the reality of LGBTI people across the EU is from living in a ‘freedom zone’.

Beyond the stories about Poland and Hungary, which have made most of the anti-LGBTIQ headlines in recently, there are so many ways in which the EU and its member states are falling short of ensuring LGBTI are free and equal in the EU, including:

• Member states such as Portugal and Italy have yet to legislate to protect LGBTI people against discrimination outside the labour market.
• The CJEU judgement in the Coman case, which three years ago established that same-sex spouses are fully recognised as spouses under the EU freedom of movement directive, has to this day not been enacted by the Romanian state, and the partner of Adrian Coman still has not been granted a residence permit in Romania, leaving other same-sex couples in similar situations in limbo.
• Children of a same-sex couple can lose one parent just by crossing an EU border, while the recent case of a child born to a same-sex couple not being recognised by the Bulgarian authorities, currently leaves that child stateless.
• Two years after the introduction of the first LGBT-free Zones and Family Rights declarations in Poland, the EC still has not brought infringement procedures against the Polish government, even though such declarations clearly infringe on the principle of non-discrimination set out, for example, in the EU employment directive.
• Only Malta, Portugal and some regions in Spain have banned non-medically necessary surgeries on intersex children.
• The Czech Republic, Finland, Latvia, Romania and Slovakia still require trans people to be sterilised before having access to legal gender recognition, while Hungary last year abolished any procedure to have legal gender recognition for trans people recognised.

Hugendubel added: “To ensure the EU will become a true LGBTIQ freedom zone, the Commission has to make full use of all tools in its box. It should ensure full implementation of all relevant EU directives and CJEU judgements in every member state. It should ensure that all member states spend EU funding in full respect of the principle of non-discrimination and respect for fundamental rights. It has to hold EU governments accountable to the principles set out in the EU treaties and the Charter for Fundamental Rights.”

According to Evelyne Paradis, Executive Director of ILGA-Europe: “It is great to see clear commitments to LGBTIQ equality from the European Parliament through this resolution, as well from the European Commission through the ‘EU LGBTIQ Equality Strategy’. Now that the EU is an LGBTIQ Freedom Zone, we need to see all actors using the full range of tools at their disposal to ensure that respect of LGBTIQ rights is guaranteed. Otherwise there is a big risk of losing credibility.”

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For further comment, contact: Ana Muñoz Padrós, ILGA-Europe: ana@ilga-europe.org, +32 493 35 60 55

ILGA-Europe launched an-hour long Twitter Storm demonstration on February 11, calling on the European Commission to take infringement procedures against Poland, making the Polish-based hashtag #infringementNOW trend

An online action, created by Brussels-based ILGA-Europe in association with the Polish LGBTI rights organisation Campaign Against Homophobia (KPH), has been supported by many politicians, MEPs, diplomats, political party groups, NGOs and human rights defenders from all around the EU and the world.

Other words like #Polish and #Poland were also among the trending topics between 9 and 10 AM in Belgium, which coincided with the European Parliament’s plenary sessions. The hashtag #infringementNOW had more than 2,000 mentions in an hour-long Twitter demonstration.

The action was created to support to a 30-day long campaign by KPH, which has been calling on the EU to initiate an infringement procedure against Poland for violating EU directives with so-called ‘Family Charters’ and ‘LGBT Free Zones’, which over 100 Polish local governments have adopted over the last two years.

https://cdn.embedly.com/widgets/media.html?type=text%2Fhtml&key=a19fcc184b9711e1b4764040d3dc5c07&schema=twitter&url=https%3A//twitter.com/ILGAEurope/status/1359777741055393792&image=

Last September, ILGA-Europe, together with KPH and Poland’s Fundacja Równości (The Equality Foundation), submitted a legal complaint to the European Commission about so-called ‘Family Charters’ and ‘LGBT Free Zones’. The complaint sets out how these declarations introduce discrimination against LGBTI people and thus breach the European Council Directive (2000/78/EC), establishing a general framework for equal treatment in employment and occupation, as well as the Charter of Fundamental Rights Article 15 on Freedom to choose an occupation and right to engage in work, and Article 21 on non-discrimination.

The campaign is not over!

Until the European Commission takes infringement procedures against Poland, let’s keep calling on it to take action. Tweet this message, and ask your followers and other stakeholders to tweet it also:

Time 4 #infringementnow against Poland 4 violating fundamental rights of EU citizens & disregarding EU treaties with so-called ‘LGBT-Free Zones’ & ‘Family Charters’. EC President @vonderleyen, what’s holding the @EU_Commission back from taking action? @helenadalli @VeraJourova

You can find an image to include with your tweet here.

For inspiration, take a look at what happened during our Twitter-storm demonstration:

Many activists tweeted #infringementnow!

Time 4 #infringementnow against Poland 4 violating fundamental rights of EU citizens & disregarding EU treaties with so-called ‘LGBT-Free Zones’ & ‘Family Charters’. EC President @vonderleyen, what's holding the @EU_Commission back from taking action? @helenadalli @VeraJourova pic.twitter.com/GvMcLHr7OD

— Bart Staszewski (@BartStaszewski) February 11, 2021

📣 Madame @vonderleyen, les "Zones sans LGBT" et autres "Chartes de la famille" en #Pologne 🇵🇱 sont contraires aux droits fondamentaux et aux traités de l'#UE 🇪🇺

➡️ Il est temps d’ouvrir une procédure d’infraction!#InfringementNow 🌈✊https://t.co/6yqianIDLg

— Sébastien Tüller (@SebastienTULLER) February 11, 2021

#Poland is violating fundamental rights of EU citizens with so-called ‘LGBT-Free Zones’ & ‘Family Charters’.

President @vonderleyen, what's holding the @EU_Commission back from taking action? @helenadalli @VeraJourova @ILGAEurope

Time 4 #infringementnow 🇪🇺

— Annika Ojala (@ojala_annika) February 11, 2021

Human Rights organisations also joined the call

Time 4 #infringementnow against Poland 4 violating fundamental rights of EU citizens & disregarding EU treaties with so-called ‘LGBT-Free Zones’ & ‘Family Charters’. EC President @vonderleyen, what's holding the @EU_Commission back from taking action? @helenadalli @VeraJourova pic.twitter.com/zbgafiVsVs

— EPOA • EuroPride (@EuroPride) February 11, 2021

Time 4 #infringementnow against Poland 4 violating fundamental rights of EU citizens & disregarding EU treaties with so-called ‘LGBT-Free Zones’ & ‘Family Charters’. EC President @vonderleyen, what's holding the @EU_Commission back from taking action? @helenadalli @VeraJourova pic.twitter.com/khiA7pt0LW

— Young Feminist Europe (@YoungFeministEU) February 11, 2021

So-called ‘LGBT-Free Zones’ & ‘Family Charters’ in #Poland violate people's fundamental rights & disregard #EU treaties.

President @vonderleyen it's time for action.

It's time for #infringementnow on Poland. pic.twitter.com/owF1r3EPFb

— Amnesty EU (@AmnestyEU) February 11, 2021

Members of the European Parliament called the European Commission to take action.

The situation of the LGBTI* community in Poland is getting harder and harder as we speak.

No more time to waste while EU citizens' rights are under attack.

EUROPEAN COMMISSION, ACT NOW.

🇪🇺 🏳️‍🌈 #infringementnow pic.twitter.com/nJvBOEfGk2

— Terry Reintke (@TerryReintke) February 11, 2021

Time 4 #infringementnow against Poland 4 violating fundamental rights of EU citizens & disregarding EU treaties with so-called ‘LGBT-Free Zones’ & ‘Family Charters’. EC President @vonderleyen, what's holding the @EU_Commission back from taking action? @helenadalli @VeraJourova pic.twitter.com/ur5xDztusu

— Irène Tolleret 🇨🇵🇪🇺🇺🇦🚀! (@ITolleret) February 11, 2021

The polish government is harming and discriminating the LGBTI* community & fundamental rights for years.
I am supporting the
#InfringementNow campaign & calling the 🇪🇺 to action 🏳️‍🌈🇪🇺🇵🇱 #loveislove @ILGAEurope, @KPH_official, @LGBTIIntergroup

— Rasmus Andresen 🇪🇺🏳️‍🌈🇺🇦 (@RasmusAndresen) February 11, 2021

On Feb 11, as the current KPH campaign draws to an end, we would like to create a Twitter storm to get the hashtag #infringementNow trending, asking why the EU Commission has not taken infringement procedures against Poland yet. Here is how you can help create this important moment.

For the past 30 days, Polish LGBTI organisation, Campaign Against Homophobia (KPH) has been tweeting to EU commissioners one story of an LGBT person living in Poland, showing how LGBT-free zones affect their lives. The goal of the campaign is to bombard EU commissioners  with stories of people from the LGBT community, indicating the necessity for the EU to initiate an infringement procedure against Poland.

Last September, ILGA-Europe together with KPH and Poland’s Fundacja Równo?ci (The Equality Foundation) submitted a legal complaint to the European Commission about so-called Family Charters and LGBT Free Zones, which over 100 Polish local governments have adopted over the last two years. The complaint sets out how these declarations introduce discrimination against LGBTI people and thus breach the European Council Directive (2000/78/EC), establishing a general framework for equal treatment in employment and occupation, as well as the Charter of Fundamental Rights Article 15 on Freedom to choose an occupation and right to engage in work, and Article 21 on non-discrimination.

On Feb 11, as the current KPH campaign draws to an end, we would like to create a Twitter storm to get the KPH campaign hashtag #infringementNow trending, asking why the commission has not taken infringement procedures against Poland yet.

Here is how you can help create this important moment.

You can easily schedule your message on Twitter now, so that it appears on Feb 11 between 9am and 10am CET (Central European Time).

Here’s how to do it:

The trial of three women accused of “offending religious beliefs” will take place, tomorrow on January 13 in Plock, Poland. The activists face up to two years in prison for disseminating posters of the Virgin Mary with a rainbow halo symbolic of the LGBTI flag. Six international human rights NGOs are calling for all charges to be dropped, and for the Polish authorities to amend their legislation and bring it in line with international and regional human rights standards. 

After a first postponement in November, the trial against El?bieta, Anna and Joanna (whose surnames are not being used to protect their privacy) will take place this Wednesday, January 13. Under article 196 of the Polish Criminal Code (C.C.), the women are accused of having ‘publicly insulted an object of religious worship in the form of this image which offended the religious feelings of others’ in relation to their display of posters of the Virgin Mary with a rainbow halo on 29 April 2019. If found guilty, the activists face up to two years in prison.

The authorities arrested and detained El?bieta in 2019 after she took a trip abroad with Amnesty International. The authorities opened an initial investigation against her in May 2019, and in July 2020 they officially charged the three activists.

Six non-governmental human rights organisations: ILGA-Europe, Amnesty International, Campaign Against Homophobia, Freemuse, Front Line Defenders, and Human Rights Watch call on the Polish Prosecutor General to drop the charges and ensure that the three women are allowed to carry out their human rights work without harassment and reprisals by the authorities.

RESTRICTING THE RIGHT TO FREEDOM OF EXPRESSION

Creating or distributing posters such as the ones depicting the Virgin Mary with a rainbow halo should not be a criminal offence and is protected under the right to freedom of expression.

In its current formulation, article 196 of the Polish C.C. imposes undue restrictions on the right to freedom of expression by providing overly broad discretion to the authorities to prosecute and criminalise individuals for expression that must be protected. This is incompatible with Poland’s international and regional human rights obligations. 

Poland is bound by the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights as well as the Charter of Fundamental Rights of the EU to respect, protect and fulfill the right to freedom of expression. 

Furthermore, in 2013, the Special Rapporteur in the field of cultural rights noted that “Restrictions on artistic freedoms based on insulting religious feelings… are incompatible with [ICCPR]”. In 2019, this was again highlighted by the Special Rapporteur on freedom of opinion and expression, who stressed that criminalising expression that insults religious feeling limits “debate over religious ideas and… such laws [enable] governments to show preference for the ideas of one religion over those of other religions, beliefs or non-belief systems”.

Freemuse is particularly concerned about the policing of artistic and creative content by the authorities in Poland and regard this court case as an unlawful attack on freedom of artistic expression.

Amnesty International has previously called on the Polish authorities to repeal or amend legal provisions, such as article 196 of the Criminal Code, which criminalise statements protected by the right to freedom of expression. Many other national and international human rights organisations have criticised provisions of the Polish Criminal Code, including article 196, as problematic because they constitute restrictions on the right to freedom of expression not permissible under international human rights law.

According to international standards, restrictions on the right to freedom of expression must be provided by law and formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly (Human Rights Committee, General Comment 34 on Freedom of Expression, para. 25). The current formulation of article 196 is not sufficiently precise, leaves space for arbitrary interpretation and allows authorities to arrest, detain, and prosecute people simply for expressing views that may be perceived by others as offensive. 

The six organisations state that everyone has a right to express themselves safely and without fear of reprisals, and that the right to freedom of expression is protected, even if some people might find the expression to be deeply offensive (Human Rights Committee, General Comment 34 on Freedom of Expression, para. 11). In the words of the European Court of Human Rights the right to freedom of expression “is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population”.

According to ILGA-Europe’s Advoacy Director, Katrin Hugendubel: “The case against El?bieta, Anna and Joanna is an example of the repeated harassment activists and human rights defenders face simply for carrying out peaceful activism in Poland, which Polish and international human rights organisations have documented and denounced at length in the last number of years. 

“El?bieta, Anna and Joanna stood against hate and discrimination and for years they have been fighting for a just and equal Poland. They deserve to be praised and not taken to court for their activism.”

BACKGROUND

To date, around 140,000 people have joined an international campaign urging the Prosecutor General to drop the unfounded charges against the three women human rights defenders. The campaign is available at https://www.amnesty.org/en/get-involved/take-action/poland-activist-elzbieta-podlesna/.   

Amnesty International, Campaign Against Homophobia, Freemuse, Front Line Defenders, Human Rights Watch and ILGA-Europe, remain committed to supporting the three women human rights defenders and campaigning for justice. 

El?bieta is one of the 14 women human rights defenders who were beaten and targeted for standing up to hate in Poland during the Independence March in 2018. See their story at https://www.amnesty.org/en/latest/campaigns/2019/04/14-women-blog/. 

At the time of her arrest in May 2019, El?bieta had just returned from a trip to Belgium and the Netherlands with Amnesty International, where she participated in several events and advocacy meetings with activists and supporters to raise awareness about the situations of peaceful protesters and the crackdown they are facing in Poland. 

To see a timeline on anti-LGBTI hate in Poland, click here.* Article 196 of the Criminal Code makes anyone found guilty of intentionally offending religious feelings through public calumny of an object or place of worship liable to a fine, a restriction of liberty, or to imprisonment for a maximum of two years.