Privileging certain groups and restricting freedom of speech in Poland just like in Western countries

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• The Polish Sejm is working on a bill to criminalize so-called “hate speech”.

• This bill to amend the Penal Code seeks to establish “sexual orientation” as a protected characteristic, and thus introduce restrictions on one’s ability to express opposition to the demands of LGBT organizations, which have been growing over time.

• The bill’s drafters, despite removing the term “gender identity” from it, did not abandon their intention of redefining the basic legal concept of one’s sex, or “gender,” so that it is understood as a social construct rather than as an objective, biological reality.

• The draft extends the scope of the amended provisions to situations in which a protected characteristic is not the direct cause of a crime, or is not a characteristic of the victim of an alleged crime at all.

• The Ordo Iuris Institute has prepared an analysis of this matter.

READ THE ANALYSIS - LINK

This ‟hate speech” bill, which was announced by Poland’s Left party at the beginning of the current parliamentary term, has made its way to the Sejm, which is the lower house of the Polish parliament (Act No. 876).

According to the draft, the following provisions of the Polish Penal Code would be amended:

• Article 53 § 2a, which contains a list of aggravating circumstances that the court takes into consideration when imposing punishments;
• Article 119 § 1, which deals with violence or unlawful threats;
• Article 256 § 1, which concerns the public propagation of a fascist or other totalitarian state ideology or incitement to hatred; and
• Article 257, which concerns public insults directed toward a group of people or an individual.

Each of the aforementioned regulations contains a list of protected characteristics falling into what are essentially two groups: 

1.  national, ethnic, and racial affiliation ,
2.  religious affiliation or irreligion.

If the crime was committed because the victim possessed any of these characteristics, the incident will carry an increased penalty. The draft bill thus seeks to expand this list to include the following characteristics: sexual orientation, gender, age, and disability.

The previous list included only those differentiating criteria that, as history demonstrates, can trigger civil unrest, riots, crimes against humanity, or civil wars – and the purpose of this legislation was always to prevent these very problems.

Adding more protected characteristics (i.e., differentiating criteria) has been repeatedly criticized by Poland’s Supreme Court, among others, which noted as early as 2014 :

“Perhaps the biggest problem with the criminalization of ‘hate speech’ is the casuistry of the regulation, rather than its abstractness. The addition of several important grounds for discrimination to the proposed regulations does not exhaust all possible discriminatory characteristics, omitting equally important ones such as mental illness, AIDS infection, alcohol or drug addiction, obesity, and homelessness. This type of legislative technique means that these provisions will have to be amended indefinitely. Otherwise the regulation will not treat all discriminated groups equally.”

The government’s project to introduce criminal sanctions for “hate speech” is actually about expanding the list of “protected characteristics” to include sexual orientation and gender as understood in a very specific way, which would be de facto analogous to “gender identity.”

In the opinion of Ordo Iuris, combining these characteristics with those of a fundamentally different nature, such as age and disability, serves to:

• gain allies (i.e., the community of the disabled) in lobbying for changes to the criminal code;
• hide the ideological nature of this endeavor behind positive associations related to the protection of women, the elderly, and the disabled; and
• recognize them as characteristics that, like age or disability, are beyond one’s control.

“It is worth noting that two changes were made to the draft before it went to the Sejm. The first is to expand the scope of the amended provisions’ application to situations in which a protected characteristic is not the direct cause of a crime, or is not even a characteristic of the alleged crime’s victim. This would lead to a situation where, in order to sentence someone to a prison term, it will not be necessary to show that the protected characteristic was in fact the reason for the alleged crime. This reinforces the de facto logic of giving preferential treatment to social groups that are defined by a protected characteristic," notes attorney Rafał Dorosiński, a member of the Board of Directors of the Ordo Iuris Institute.

True to say, the term “gender identity,” which, as noted in the explanatory memorandum, “raises interpretive doubts that have been expressed during public consultations,” has now been removed from the draft. By removing this term from the draft, however, its authors did not abandon their intention of redefining the basic legal concept of sex understood as “gender.” Indeed, as they write in their supporting brief:

“It seems that, in principle, the very phrase ‘in connection with sex’ – instead of ‘because of one’s sex’ – will lead to an interpretation in the spirit of the Convention on Preventing and Combating Violence Against Women and Domestic Violence”

Meanwhile, in the Convention on Preventing and Combating Violence Against Women and Domestic Violence, which is also known as the Istanbul Convention, the concept of sex, or “gender” is understood as a social construct rather than an objective, biological reality. Adopting such an understanding of one’s sex would essentially mean that an individual’s own declaration concerning his self-identification with a particular sex (or “gender”), i.e. his “gender identity,” would take precedence over his objectively existing sex (biologically speaking). Adoption of this draft bill would therefore mean that a person who expresses opposition to allowing men who claim to be women into women’s changing rooms (e.g., at swimming pools), restrooms, or shelters, or opposition to placing criminals convicted of rape in the same cell as a woman, could be subject to criminal liability.

According to Ordo Iuris, the government’s draft bill thus entails a ban on expressions of opposition to the demands of LGBT organizations and the imposition of their views on the topics of sex and sexuality. The proposed legislation does not explicitly state this, but it would be the effect in practice of recognizing “sexual orientation” as a protected characteristic, as demonstrated in countless examples from countries where similar regulations have already been adopted.

The first victims of censorship usually are Christians, journalists, scientists, politicians, the clergy, and social activists. Notable examples have included Finland’s Interior Minister, a member of Mexico’s Chamber of Deputies, a Spanish TV station, a Belgian parliamentarian, a Swiss bishop, and a popular Polish journalist who was barred from entering the United Kingdom. Such repression ultimately reaches ordinary people, who are punished merely for expressing their religious or social beliefs.

Rafał Dorosiński devotes space to a discussion of the “dangers of fighting hate speech” in his book Hate Speech: Trojan Horse of the Cultural Revolution, which is available in Polish at www.kontrojanski.pl.

Our full analysis of the proposed draft law in PDF format – LINK