Poland’s lack of recognition for same-sex unions violates human rights, rules European court

Poland’s lack of legal recognition and protection for same-sex couples violates their human rights, the European Court of Human Rights (ECHR) ruled today in a landmark case.

The judges rejected the Polish government’s arguments – which included that traditional marriage is part of Poland’s heritage – and found that “the Polish state had failed to comply with its duty to ensure a specific legal framework providing for the recognition and protection of same-sex unions”.

“It took a long time, definitely too long,” Grzegorz Lepianka, one of those who brought the case against Poland, told the Dziennik Gazeta Prawna daily. “But I finally have some hope for real and truly good changes.”

Lepianka was one of ten Polish nationals, who together make up five same-sex couples, who brought the case to the ECHR after failing in their attempts to have their unions legally recognised in Poland.

Registry offices and courts had rejected their attempts to marry, citing the lack of any such legal possibility in Poland and pointing to article 18 of Poland’s constitution.

That article states: “Marriage as a union of a man and a woman, family, motherhood and parenthood shall be placed under the protection and care of the Republic of Poland.”

That led the five couples to file complaints to both Poland’s Constitutional Tribunal (TK) and to the ECHR in 2017 and 2018. The TK rejected one of the couple’s cases in 2021, saying the issue was a legislative one outside its competence. It has not yet considered the others.

But today, the ECHR ruled in favour of the couples, who had argued that their rights under articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights had been violated.

The ECHR found that Poland’s failure to provide a legal framework recognising same-sex unions “had resulted in the applicants’ inability to regulate fundamental aspects of their lives and amounted to a breach of their right[s]”, for instance concerning property, maintenance, taxation and inheritance.

It dismissed the Polish government’s argument that “the traditional concept of marriage as a union of a man and a woman constituted Poland’s social and legal heritage”. The ECHR noted that legal recognition of same-sex unions does not have to take the form of marriage.

It also rejected the idea that recognising same-sex unions “could harm families constituted in the traditional way”. Indeed, “securing rights to same-sex couples does not in itself entail weakening the rights secured to other people or opposite-sex couples”, wrote the court.

The court also took note of “the increasingly hostile and homophobic attitudes towards sexual minorities displayed by high-ranking politicians from the ruling party” in recent years.

“In its case-law, the court has consistently declined to endorse policies and decisions which embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority,” wrote the ECHR, which cited a similar ruling regarding same-sex unions against Russia.

The ECHR noted that the arguments put forward by the Polish government “had not differed substantially from those relied on by the Russian Federation” in the previous case, including the claim that most Poles are opposed to same-sex unions.

The court pointed out that the applicants in the case had submitted evidence showing growing support for same-sex unions in Poland, but added that in any case prevailing social attitudes do not justify the violation of human rights.

A lawyer representing one of the couples, Paweł Knut, told Dziennik Gazeta Prawna that he hoped the ECHR’s ruling “will be the final recognition of the demands for legal protection that same-sex couples have been raising in the national public debate for over two decades”.

The ongling change of government in Poland has also given LGBT activists hope. The national-conservative Law and Justice (PiS) party, which has ruled Poland since 2015 and has during that time led a strident anti-LGBT campaign, is this week being replaced by a more liberal coalition of parties.

The largest member of that coalition, the centrist Civic Coalition (KO), has pledged to introduce same-sex civil unions. The smallest member, The Left (Lewica), wants full marriage equality.

They will, however, have to further negotiate the issue with the more conservative centre-right Third Way (Trzecia Droga), which is the final member of the coalition.

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Main image credit: Miłość Nie Wyklucza/Flickr (under CC BY-ND 2.0)

Agata Pyka

Agata Pyka is an assistant editor at Notes from Poland. She is a journalist and a political communication student at the University of Amsterdam. She specialises in Polish and European politics as well as investigative journalism and has previously written for Euractiv and The European Correspondent.