FREE LAW JOURNAL Volume 1, Number 2 (October 18, 2005)

FREE LAW JOURNAL - VOLUME 1, NUMBER 2 (18 OCTOBER 2005)
cannot be sustained any longer; we cannot ignore such a numerous
group of Polish citizens since “the Republic of Poland shall be the
common good of all its citizens“ (Art. 1 of the Polish Constitution).
How can we talk about justice and equality when a part of the society is
being denied rights because of sexual orientation? It is to be hoped that
following example of other European states also in Poland changes will
come, changes that will contribute to the struggle against discrimination
and will ensure equality of rights and chances for homosexual people.
There is no reason to regard homosexuality as something unnatural; it is
a natural sexual orientation to the same extent as heterosexual one. It is
usually emphasized that when making new law relating to the legal
status of homosexuality the social awareness should not be ignored but
it must also be borne in mind that the majority opinion is not always
righteous. Professor Szyszkowska righteously said that “very rarely the
right belongs to the majority. The number of voices in favour of an
opinion cannot be the measure of its legitimacy” 30 . Statistics cannot
justify discrimination and prohibition thereof is recognized as standard
of Polish law and the European Community law as well as the
international law. As the example of Scandinavian states demonstrates –
it is possible to create changes in social attitude through changes in law.
In this place we could ask ourselves whether the protection accorded in
Polish law is sufficient or whether maybe we still deal with
discrimination. How should ‘tolerance’ be understood – in negative
terms only as enduring something unpleasant mere lack of
discrimination? And is it enough? Despite all the positive changes in
Polish legal system, the protection is – in my opinion – not sufficient. It
is not sufficient to depenalize homosexuality and pass a few
antidiscriminatory provisions. The mere non-existence in internal law of
provisions “institutionalizing” 31 homosexuality equals discrimination;
provisions that accord to gays and lesbians full, equal rights as
compared to those accorded to heterosexuals. At the end it is worth
30
Quote from: Z.Sypniewski, B.Warkocki (ed.), op.cit., p.288 (translation by
the author).
31
Adjective taken from M. Filar, op.cit., p.122.
208
AGNIESZKA SZPAK - THE LEGAL STATUS OF HOMOSEXUAL PEOPLE IN POLISH
LAW WITH REGARD TO THE LAWS OF OTHER EUROPEAN COUNTRIES AND
INTERNATIONAL LAW. FROM DEPENALIZATION THROUGH TOLERANCE UNTIL
FULL EMANCIPATION