Polish president sends government bill criminalising anti-LGBT+ hate speech to constitutional court

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Notes from Poland is run by a small editorial team and is published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Conservative president, Andrzej Duda, has not signed into law a bill proposed by the government and passed by parliament that would expand Poland’s hate crime laws to include sexual orientation, sex/gender, age and disability as protected categories.

Instead, he has sent it for consideration by the Constitutional Tribunal (TK), saying he has concerns that the measures violate the constitutional right to free speech. That means the bill will only enter into force if the TK decides that it conforms to the constitution.

However, given that the TK is regarded as being under the influence of the conservative former ruling Law and Justice (PiS) party – which opposes the proposed measures and with which Duda is aligned – the president’s decision means the bill may sit indefinitely at the tribunal or simply be rejected by its judges.

Poland’s existing hate crime laws apply to “crimes motivated by hatred because of the victim’s national, ethnic, racial, political or religious affiliation”. They punish violence, threats or insults motivated by such hatred, or promoting ideologies based on it, with prison sentences ranging up to five years.

However, the current government believes that “these provisions do not provide sufficient protection for all minority groups who are particularly vulnerable to discrimination, prejudice and violence”, in the words of the justice ministry.

Last November, the cabinet therefore approved legislation that would add sexual orientation, sex/gender (płeć in Polish, which can be translated as either English word), age and disability to the existing categories covered by the hate crime laws.

Last month, the bill was approved by parliament, with the three ruling groups – the centrist Civic Coalition (KO), centre-right Third Way (Trzecia Droga) and The Left (Lewica) – voting in favour. PiS, which is the main opposition party, and the far-right Confederation (Konfederacja) were opposed.

They argued that the measures would result in the censorship of views deemed politically incorrect. That claim was rejected by the justice ministry. No one will be punished for saying “there are two sexes”, said deputy justice minister Arkadiusz Myrcha.

After being approved by parliament, the bill went to the desk of President Duda, who had the choice of signing it into law, vetoing it, or sending it to the TK for assessment. He announced on Thursday afternoon that he has chosen the latter option.

The president argued that “the provisions in question raise doubt from the perspective of the implementation of the freedom of expression guaranteed by the…constitution”.

“Resorting to criminal law instruments is justified only when the desired goal cannot be achieved in any other way,” wrote Duda. “The drafters [of the legislation] have not demonstrated that [existing] protections are insufficient.”

He added that the proposed law “carries a high risk of its instrumental use and thus creating a kind of preventive censorship”.

Duda has himself in the past spoken out against what he and PiS call “LGBT ideology” or “gender ideology”. During his re-election campaign in 2020, the president pledged to “defend children from LGBT ideology”, which he called an “ideology of evil”.

Speaking to Catholic broadcaster TV Trwam today, Duda said that “it is very characteristic that these leftist-liberal trends, which shout so loudly about tolerance and about diversity – that it should be allowed everywhere – are the first to block the possibility of speaking out”.

The justice ministry, however, has previously argued that the proposed laws would in fact “ensure a more complete implementation of the constitutional prohibition of discrimination on any grounds”.

The constitutionality of the legislation will now in theory be assessed by the TK. However, in practice, the case may simply be left on the shelf. Last July, Duda referred a government bill undoing some of PiS’s judicial reforms to the TK, and it still remains there.

Even if the TK were to rule, the body is widely regarded as being under the influence of PiS. Moreover, the current government does not recognise the legitimacy of the TK and its rulings due to it containing judges unlawfully appointed by PiS and Duda.

The UN’s Human Rights Council has previously expressed concern over the fact that Poland’s penal code does not include disability, age, sexual orientation or gender identity as grounds for hate crimes.

Adding sexual orientation and gender to hate crime laws was one of the elements of the coalition agreement that brought the new, more liberal government to power in December 2023, ending eight years of PiS rule.

That marked a significant change after a period in which PiS had led a vocal campaign against “LGBT ideology” and “gender ideology”. Partly as a result of such rhetoric, Poland has been ranked the worst country in the European Union for LBGT+ people for the last five years running.

However, despite the lack of specific legal protection, LGBT+ groups have claimed some victories. Last year, a court handed down a binding legal conviction for defamation against the head of a conservative group that sends out drivers in vans bearing slogans linking LGBT+ people to paedophilia.

Notes from Poland is run by a small editorial team and published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Main image credit: Jakub Wlodek / Agencja Wyborcza.pl

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.