Justyna Wydrzyńska convicted
On 14 March 2023, the polish activist Justyna Wydrzyńska, co-founder of the NGO “Abortion Dream Team” was sentenced in the first instance to 240 hours or 8 months of community service for “abortion assistance”. She was convicted after sending her own abortion pills to a woman who sought help from her organisation to have an abortion. Since the announcement of the Polish court’s verdict, international NGOs1 and institutions have reacted one after another in support of Justyna Wydrzyńska, and through her to all women. They all warn about the deterrent effect of the Polish legislation. Indeed, people who want to help other women to have an abortion may be deterred in the future, bearing in mind that the maintenance of this right is far from being guaranteed, as shown by its decline in Poland.
Similarly, this decision discourages women from obtaining medical pills, whereas the WHO approves their effectiveness and safety. On 15 March 2023, United Nations experts condemned the Polish decision and demanded the acquittal of Justyna Wydrzyńska2. They express concern about the impact of this ban on other countries and situations where abortion remains legal. The UN calls on the Polish government to fully decriminalise abortion in the name of women’s right to health. Access to essential medicines for safe abortions and support for this medical practice is a fundamental right.
This trial illustrates the situation in Poland, almost two years after the constitutional amendment repressing the right to abortion. Since then, parallel self-help networks between women have been flourishing. While voluntary termination of pregnancy (abortion) is allowed in a growing majority of European countries, with 24 out of 27 Member States having decriminalised or legalised abortion3, some countries seem to be moving backwards. After trying to ban it entirely in 2016, the Polish government drastically restricted this right in January 2021. The Constitutional Court decided on 22 October 2020 to limit the practice to cases of rape or danger to the mother’s life, removing the possibility of abortion in cases of foetal malformation, effectively making 90% of abortions in the country illegal. The devastating impact of the new Polish legislation on women’s health has been repeatedly denounced by human rights organisations, particularly in response to the multiple deaths of women from septic shock after doctors refused to terminate their pregnancies4.
The reaction of the European institutions
In reaction to this legislation, the European Parliament adopted a resolution on 26 November 2020 declaring the Polish Constitutional Court illegitimate. On the first anniversary of this de facto ban on abortion in Poland, a second resolution was adopted, recalling that this does not reduce the need for abortion for the women concerned, but makes them endanger their health. The European Parliament again condemned this violation of human rights and called on the European Commission to propose a directive on preventing and combating gender-based violence, including violations of sexual and reproductive rights.
Opposed to these resolutions, “Ordo Iuris”, a Polish private foundation, has asked the EU General Court the annulment of the Parliament’s resolutions. Fighting against the rollback of the right to abortion, the Court rejected the two applications of 2021 and 2022 as manifestly inadmissible5.
However, the European institutions did not wait for the ruling of the Polish Constitutional Court to fight against the progressive rollback of this right, maintaining their position as defenders of fundamental freedoms in the face of successive challenges from the Polish government or protesting organisations. Thus, a series of judgments were brought before the CJEU, opposing the citizens’ committee of the European Citizens’ Initiative entitled “Uno di noi” (one of us), calling for a ban on EU funding for activities involving the destruction of human embryos – thus the right to abortion – and the European Commission has refused to forward it to the Parliament for debate. On 16 March 2016, “Uno di noi” appealed to the General Court to request the annulment of the communication in question6. This appeal and the following attempts7 were all rejected. Thus, while the Polish government supported the citizens’ initiative, pointing out the legal and ethical flaws of the Communication, the European Council and the European Parliament argued in support of the Commission and against “Uno di noi”.
Social rights under menace
Similarly, the European Social Charter has acted as a guardian of social rights since 1961, guaranteeing the enjoyment of fundamental economic and social rights without discrimination. Among them, the Charter protects the right to health protection in Article 11. Member States are obliged to eliminate the causes of poor health as much as possible and prevent endemic problems8. Sexual and reproductive rights are fundamental rights based on dignity and equality; their violation would constitute a violation of the right to health of women and girls. Therefore, abortion is included in this type of right and is protected by the European Social Charter. The effectiveness of access to health care in Poland is monitored by the European Committee of Social Rights, which publishes a report on the national situation every year. After finding that access to healthcare in Poland does not comply with the Charter, the 2023 annual report reiterates its response, seeing that the government has not taken any steps to remedy the situation. The Committee also questions access to contraception and recalls the right of citizens to be informed of its cost. Finally, the Committee condemns Poland’s restrictive abortion laws because of the poor conditions under which abortions are carried out; they endanger the health and lives of the women who undergo them. Therefore, Poland is called upon to restore the situation to bring it into line with Article 11 of the 1961 Charter and protect the right to access health.
The last few years have been pivotal for abortion rights, posing many threats to fundamental freedoms. The prohibition of women’s access to abortion is a clear impediment to their right to self-determination and the fight for gender equality. Still, it also impacts social and economic equality and is a form of gender-based violence. Indeed, when a state denies or makes access to abortion more difficult, women’s right to health is threatened. While this medical intervention is extremely safe when carried out according to recognised and supervised methods9, it is hazardous when carried out clandestinely. Today, a woman dies every 9 minutes from the consequences of clandestine abortion in the world10. The decline in abortion rights worldwide and in Europe has resulted in an increase in the number of unsafe abortions, forcing women to travel abroad or to have risky operations. De jure or de facto ban on abortion infringes on women’s health, autonomy, sexual and bodily integrity, and even their lives.
A threat that extends beyond Poland
The gradual decline of abortion rights is not a reality only in Poland; the threat of a backlash looms all over Europe and extends far beyond. The European institutions regularly point out that criminalising abortion and restricting its access violate the human rights obligations of Member States. This recognition can be seen through the social strand of Europe and the United Nations. The International Covenant on Economic, Social and Cultural Rights (ICESCR), the European Social Charter and the Charter of Fundamental Rights of the European Union are all examples of the right to health. Forcing women to resort to clandestine abortion sends them back to practices that are very dangerous for their health.
The European Court of Human Rights has used the right to health as an argument in two joint cases against Sweden. On 11 February 2020, two applications concerning midwives who were not hired because of their refusal, on religious grounds, to take part in abortions were declared inadmissible for being manifestly unfounded11. For the first time, the Court enshrined the obligation to perform abortions in the name of the legitimate objective of protecting the health of women seeking abortions. Faced with the rising argument of the right to conscientious objection, the Court recalled the positive obligation of States to organise their health system in such a way as to ensure that the effective exercise of this freedom of conscience in the professional context does not impede the provision of these services.
Despite all of this, the effectiveness of the right to abortion is currently threatened in Italy by the increasing use of the right to conscientious objection by practitioners. In 2020, 64.6% of gynaecologists refused to perform abortions12.
Finally, the year 2022 saw unprecedented threats. On 24 June 2022, the US Supreme Court’s announcement to overturn the landmark case Roe v Wade – that opened abortion rights in 1973 – led to a ban on abortion in 18 States and to a worldwide shock. Within a month, the European Parliament passed two new resolutions condemning the US decision. First, MEPs called on the European Council to trigger the revising procedure to include in the EU treaties the right to abortion in the Charter of Fundamental Rights and to uphold the Roe v Wade ruling.
From the 15 of September 2022, it has been Hungary’s turn to regulate abortion rights. It was decided that women wishing to have an abortion must listen to the heartbeat of the foetus to be confronted with its vital functions
Despite the recurrent reminders of the European institutions on the principle of non-regression13, the developments observed sound warning bells about the conservative movements’ ambitions regarding the right to abortion and the consequences on women’s health, whether the right to have an abortion is threatened in the legislative texts or in its effectiveness.
By Anna Diaz
- See for example Elisa Covo’s interview of Amnesty International France, “Justyna Wydrzyńska : tout ce qu’il faut savoir sur la condamnation de cette militante polonaise pro-IVG”, Madmoizelle, 15 march 2023.
- UN press release, “Expert UN calls on Poland to acquit human rights defender Justyna Wydrzyńska”, 15 March 2023.
- Ireland is the latest European country to have decriminalise abortion through to the referendum of 25 May 2018, adopted by the Irish Parliament on 13 December 2018.
- Agnieszka T. who died on 25 january 2022; Izabel who died on 22 september 2021.
- Order of the General Court of 11 October 2022, Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris v Parliament, T-41/22.
- Order of the President of the First Chamber of the Court of First Instance, European Citizens’ Initiative ‘One of us’ and Others v. European Commission, 16 March 2016, T-561/14.
- Judgment of the General Court (Second Chamber, Extended Composition), European Citizens’ Initiative One of Us and Others v. European Commission, 23 April 2018, T-561/14; CJEU, European Citizens’ Initiative One of Us v. Judgment of the General Court (Second Chamber, Extended Composition), 26 June 2018, C-418/18; CJEU, GC, Patrick Grégor Puppinck and Others v. Republic of Poland, European Commission, European Parliament, Council of the European Union, European Citizens’ Initiative One of Us, 19 December 2019, C-418/18.
- European Social Charter, art.11 paragraph 1 and 3.
- Abortion care guideline, Geneva, World Health Organization, 2022.
- Figures given in a family planning report, 2016.
- ECtHR, Grimmark v. Sweden and Steen v. Sweden, 11 February 2020.
- Italian Ministry of Health, Relazione Ministro Salute attuazione Legge 194/78 tutela sociale maternita e interruzione volontaria di gravidanza – dati definitivi 2020.
- According to which public authorities should not adopt measures that undermine the previously developed level of protection.
Recognition of the right to self-determination: between decline and progress
In December 2022, Scottish MPs passed a law allowing gender self-determination. The British government unfortunately blocked this widely welcomed social advance. On 17 January 2023, London officially blocked the bill’s enactment by refusing to give royal assent – a formal but necessary step for the enactment of any legislation in the UK. In response to this resistance, the Scottish government has announced that it will respond by using Section 35 of the Scotland Act 1998, which would allow legislation to be passed without the King’s consent. These disparities are indicative of the remaining tensions in Europe over transidentity, transgender protection and gender reassignment in civil status. Like Scotland, Spain has recently changed its legislation in favour of the rights of transgender people, allowing gender self-determination. On 28 February 2023, the Spanish Parliament passed the law of “real and effective equality for trans people” – or “transgender law” – suggested by the Podemos party.
Gender self-determination makes it easier for people to have their gender legally recognised, notably by removing any medical diagnosis requirements. Transgender people will no longer need to prove their gender dysphoria, which is often a long and degrading process, to see the gender they identify with recognised from age 16. The laws aim to avoid the distress caused to trans people by the mismatch between their biological sex and the gender they identify, but also to fight discrimination and increase the protection of trans people. In the field of social rights, the new Spanish legislation sets out positive obligations for companies and public administrations to achieve effective equality for LGBTQIA+ people and disseminate good practice in terms of inclusion.
Germany is the latest country to follow this line of improvement in trans rights. On 25 March 2023 a parliamentarian revealed a recent agreement with Olaf Scholz’s government to simplify the administrative procedure for gender reassignment, allowing those affected to provide a simple self-declaration.
This sudden increase in the rights of people from the LGBTQIA+ community is more necessary than ever to address ordinary transphobia. However, this progress should not lead to illusions about the growing acceptance of the rights of transgender people. Despite some progress, the issue of trans-identity in Europe remains undeniably a divisive one.
Despite these recent improvements, only a handful of EU countries have enacted the principle of self-determination into national law. Denmark was a forerunner, adopting the principle as early as 2014, joined the following year by Ireland and Malta. Finally, Belgium amended its legislation in 2017 and Portugal and Luxembourg in 2018. There are some slim hopes for the Netherlands and Austria, where some steps towards reform seem to have been taken. France, on the other hand, seems to be more mixed. Currently, although medical treatment or an operation are no longer necessary criteria to modify gender in civil status, this remains subject to a court decision verifying the reality of gender dysphoria. For minors, the agreement of parents or guardians is required up to 18 – compared to 16 in Germany, for example.
Even more problematic is that Sweden, a pioneer in transgender rights, has reversed its position on transgender protection. In February 2022, the Swedish government announced the end of hormone therapy for minors, allowing the practice only for scientific research. In doing so, Sweden joined Finland’s position presented in 2020. Another regression was seen in Hungary, which adopted a series of anti-LGBT texts in December 2020. Gender is defined as only that of birth, so gender change is prohibited in civil status.
The lack of a European consensus on the issue of transidentity and the lack of common definitions of the corresponding notions explain the practical differences in European countries.
The European Union has not developed yet any specific directive on gender identity discrimination. Directive 2000/78/EC promotes equal treatment in employment and occupation, prohibiting discrimination on the grounds of sexual orientation. However, its prohibition stems from the case law of the ECtHR. In 1996, the Court included in the category of ‘sex’ discrimination against a person on the grounds that they intend to undergo or have undergone a sexual conversion. Then Directive 2000/54/EC included in its preamble discrimination based on a person’s change of sex. However, these legislative texts are not sufficient to protect trans people, in particular because of the lack of recognition and consensus of the notions of “sexual orientation” or “gender identity”. A collective proposal was thus submitted to the UN General Assembly by France and the Netherlands on sexual orientation and gender identity. Fifty-seven states approved this European proposal, but a counter-declaration by 57 other states, federated by the Organisation of Islamic Cooperation, overturned this initiative. The interpretation of the European Courts, and in particular the CJEU, can still cover the inclusion of gender expression in the notion of discrimination in the name of their fight against all discrimination based on sex
Since 2015, the Council of Europe has been encouraging member states to facilitate self-determination, de facto supporting the prohibition of discrimination based on gender identity. However, such discrimination is still only prohibited by a minority of member states.
The right to health protection: between theory and practice
In 2019, the WHO removed transidentity from the list of mental disorders. This belated reclassification is a victory for the rights of trans people, and a major step forward for access to health services.The link between transidentity and the right to health is undeniable. Denying the existence of this identity or pathologizing it leads to psychological, verbal, and physical violence against the people concerned1. Firstly, by belonging to a minority that is particularly criticised, misunderstood and institutionally discriminated against, trans people are subject to the apprehension of actual or potential violence causing abnormal stress. This reality has been the subject of numerous studies and has been theorised as ‘minority stress’ by Ian H. Meyer2. Finally, a 2017 study shows that the rate of depression is higher among trans people who have not yet transitioned or completed their transition, not only compared to cisgender people, but it also decreases among trans people who have completed the transition process3. All these similarities in scientific and empirical studies, bringing together individual and societal experiences, are evidence that being a member of the trans community affects the mental health of individuals. Thus, governments that have recently allowed self-determination acknowledged their commitment to fighting gender dysphoria by depathologizing transidentity.
The Revised European Social Charter guarantees in Article 11 the right to health protection. In the summary of the quasi-jurisprudence of the European Committee of Social Rights, the Council of Europe states that Article 11 complements Articles 2 and 3 of the European Convention on Human Rights4. Thus, the right protected by the Charter derives directly from the right to the integrity of the human person. It is explicitly stated that Article 11 is to be interpreted as including respect for physical and mental integrity as an integral part of the right to health protection5.
This interpretative development of Article 11 stems from a collective complaint initiated by Transgender Europe and ILGA-Europe against the legal obligation of sterilisation imposed in the Czech Republic on transgender persons wishing to initiate a gender change procedure in the civil registry. Thus, the rights defined by the Charter must be interpreted in the light of current reality, respecting the dignity of individuals. In this violation decision, the ECSR imposes several positive and negative obligations on governments, including the duty of direct or indirect non-interference in exercising the right to health. In the name of dignity and the notion of consent, any medical treatment that is not absolutely necessary may be found to violate Article 11, if it is required to obtain access to another right. Therefore, making a change of gender in civil status conditional to a medical operation is contrary to the Charter. This obligation of non-interference and protection of the health of trans persons was recalled by the Committee in its conclusions for 2021, as part of a general response to the right to health protection of transgender persons, but also to Poland. In its country conclusions, the Committee asked Poland to provide more information on the situation of transgender persons in the country, including on access to gender reassignment treatment and the conditions for legal recognition of gender identity.
This issue is undeniably linked to the notion of consent, since informed consent is essential for the proper exercise of the right to health, autonomy, and human dignity. Not only should transgender persons be free to seek medical treatment or surgery, but it should be preceded by adequate information. In fact, imposing a medical operation as a sine qua non condition for trans people to be recognised as belonging to the gender they correspond to, amounts to coerced consent.
Although these laws are favourable to the protection of the right to health of transgender people, they still seem too exceptional and invisibilised to be effective. The practical reality shows all the difficulties trans people face in accessing adequate health care and the many situations in which they are still subjected to degrading and discriminatory treatment.
Discrimination and harassment at work: the scourge of trans people
After analysing a series of surveys on the working conditions of trans people, the conclusion is clear: all over the world transgender people suffer from discrimination in the workplace because of being a trans minority.
In 2020, the EU Fundamental Rights Agency revealed the results of a survey entitled “A long way to go for LGBTI equality”6. In this survey the LGBTQIA+ community was asked whether they felt discriminated against based on their belonging to this community when looking for a job, and separately when working. Thus, both before and during their time at work, discrimination occurs. Among all categories of the LGBTQIA+ community, transgender respondents were significantly more likely to have felt discriminated against at work (35%). In 2022, an IFOP survey for “L’Autre Cercle” estimated that more than half of LGBTQIA+ people in France hear LGBTphobic expressions in their work organisation (“this is not a faggot’s job”, for example)7. Three out of ten say they have been the victim of at least one attack on this ground in their working life8. Between one and two million LGBTQIA+ people still hide their sexual orientation at work9. This scourge is not limited to Europe. A Canadian national survey on harassment and violence in the workplace estimates that in 2022, trans and non-binary people are subject to more harassment and violence than others.
In addition to discrimination, transgender people therefore face the problem of harassment in the field of employment. Harassment is defined as repeated acts leading to a deterioration of working conditions, which may affect a person’s rights, dignity and physical or mental health, which may jeopardise their professional future. Logically, harassment can be qualified as discriminatory if it is based on a generally accepted discrimination criterion; thus, it includes gender identity.
Article 20 of the Revised European Social Charter prohibits discrimination based on sex. Member States are required to put in place measures to ensure effective equality at all stages of professional careers. Furthermore, Article 3 protecting the right to safety and health at work should be interpreted as including the prohibition of violence and harassment at work10. The Charter does not define the risks to be regulated. Still, the Member States must demonstrate to the Committee the existence of adequate preventive and protective measures concerning certain risk areas, including psychosocial risks, work-related stress, aggression, violence, and harassment in the workplace11. It is also stated that the Charter must be interpreted in a way that is adapted to current realities, so it seems that the specific issue of trans people must be addressed and protected by companies.
At all stages of working life, whether at the time of hiring, career development or at the time of dismissal or termination, trans people suffer the consequences of trivialised LGBTphobia. This situation of human rights violations specific to LGBT persons in the workplace is particularly complex, as it is hardly regulated. Non-discrimination law must be applied in the employment sector, whether public or private. However, as mentioned above, there is no consensus on the notion of discrimination and what it encompasses. There is no specific prohibition of discrimination on the grounds of transidentity in European legislation. Case law has incorporated such violence into the prohibition of sex discrimination, but the coverage appears to be limited to people who have undergone sex reassignment.
The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, adopted in 2011, is the first human rights treaty to explicitly include gender identity as a ground for discrimination. At the national level, a minority of Council of Europe member states have explicitly included gender identity in their anti-discrimination legislation. France joined them recently, enshrining the term ‘gender identity’ as a specific discrimination12 criterion to replace ‘sexual identity’. This progressive evolution avoids confusion between “sex” and “identity” and thus eliminates stigmatisation.
However, this lack of legislation and uneven progress worldwide allows negative stereotypes and discrimination to persist. Institutions’ lack of concrete action reveals passivity and a lack of consideration of what is at stake in this discrimination and the consequences for the lives of trans people. The persistent stigmatisation prevents the understanding of the notion of trans-identity.
In fact, the most effective development at the moment is more localised. For example, in 2012, the French organisation “l’Autre Cercle” created a Charter of LGBT+ Commitment, enshrining four main principles for companies. Companies can sign the Charter, committing themselves de facto to respecting its principles and publicly demonstrating their willingness to achieve equal treatment of LGBT+ employees. Today, the Charter has 186 signatories.In the face of international discord, would civil society actors be in the best position to effectively protect the violated rights of minorities?
By Anna Diaz
- Revealed by numerous surveys, see among others: FRA – European Union Agency for Fundamental Rights, “A long way to go for LGBTI equality“, 2020 ; Lucia S, Stadelmann S, Amiguet M, Ribeaud D, Bize R, Enquêtes populationnelles sur la victimisation et la délinquance chez les jeunes dans les cantons de Vaud et Zurich. Les jeunes non exclusivement hétérosexuel-le-s :populations davantage exposées? Lausanne : Institut universitaire de médecine sociale et préventive, 2017 (Raisons de Santé 279).
- Meyer IH, « Prejudice, social stress, and mental health in lesbian, gay and bisexual population : conceptual issues and research evidence », Psychological Bulletin, 129(5), 674-697, 2003.
- Durkwood, L., MacLaughlin, K., Olson, K. (2017) “Mental Health and Self-Worth in Socially Transition Transgender Youth.” Journal of the American Academy of Child & Adolescent Psychiatry, Volume 56, Issue 2, p. 116-123.
- Digest of the case law of the European Committee of Social Rights, June 2022, p. 111.
- Ibid, p. 112.
- FRA – European Union Agency for Fundamental Rights. A long way to go for LGBTI equality, 2020.
- Results of the 3rd LGBT+ Barometer of « L’Autre Cercle » in partneship with Ifop, Un état des lieux de l’inclusion des personnes LGBT+ au travail en France, 3 June 2022.
- Ibid, pp.8-9.
- Défenseur des droits, Agir contre les discriminations liées à l’orientation sexuelle et à l’identité de genre dans l’emploi, Guide may 2017.
- Digest of the case law of the European Committee of Social Rights, June 2022, p. 63.
- Law n°2017-86 from 27 January 2017 on equality and citizenship.