Sexual rights between “Polandisation” and Europeanisation

By Annamária Tóth | 18 October 2012

To quote this document: Annamária Tóth, “Sexual rights between “Polandisation” and Europeanisation”, Nouvelle Europe [en ligne], Thursday 18 October 2012, http://www.nouvelle-europe.eu/node/1552, displayed on 14 December 2017

There is a Hungarian saying that the Hungarians and the Poles are good friends and will stay together for better or for worse. This saying seems to be reconfirmed in some of today's socio-political debates. As far as abortion and other sexual, reproductive and health rights (SRHR) are concerned, “Hungary is polandising,” Judith Wirth, Policy Officer at NaNe Women's Association from Budapest argued at the conference “Women, Gender and Feminism(s) in the V4 Countries”.

Wirth referred to the conservative backlash in the area of SRHR, which has recently accelerated in the Hungarian context with the adoption of the new Fundamental Law. The two countries have also seen controversial developments in the area of sexual rights more generally. For instance, Hungary's Budapest Prides of the past years have been accompanied by extreme right counter-demonstrations and public opinion is not necessarily more positive about the event either. While sexual rights are a controversial topic in many countries in and outside the V4 region, the discussions in Paris showed that Hungarian-Polish friendship is getting better and better in this respect and that some countries might even be joining them.

Poland: Legal restriction, practical prohibition

In Poland, Katarzyna Pabijanek, Advocacy Officer of the Polish Federation for Women and Policy Planning and Coordinator of the ASTRA project, explained, the 1993 Law on Family Planning, Human Embryo Protection, and Conditions for Legal Abortion limited the possibilities for legal abortion to (1) when the woman's or the embryo's life is endangered, or to (2) a criminal act. “The result is that the law is highly restrictive but not effective,” Pabijanek argued. In addition, given the so-called conscience clause, which allows a doctor to refuse carrying out an abortion for moral or religious reasons, many doctors refuse to provide an abortion even in cases in which the law would allow it. Pabijanek mentioned the case of Alicja Tysiac, a woman with eyesight problems. When three ophthalmologists and her general practitioner concluded that pregnancy would further endanger her eyesight, she went to see a gynaecologist, who destroyed the report, and Tisiac, who could not afford legal help at the time, went through with the pregnancy. Even though she won a case against Poland in front of the European Court of Human Rights ever since, the pregnancy had already aggravated her problems to the extent that she is now not able to work anymore. All in all, then, “current regulations fail to provide women with effective means to obtain lawful abortion in a situation when their life or health is endangered,” Pabijanek concluded.

Hungary: From liberalism to conservatism

In Hungary, public debate about SRHR has recently focused on abortion and peaceful birth,” Wirth emphasized the move from a very liberal abortion legislation to more and more formal restrictions and a moralising discussion on how to give birth. This is most apparent in the new Fundamental Law, which states in its Article II that “Human dignity shall be inviolable. Every human being shall have the right to life and human dignity; embryonic and foetal life shall be subject to protection from the moment of conception.” Until now, the Constitutional Court could draw back questions about abortion. “Now, [it] will likely be faced with a challenge to interpret the “right to protection of foetal life” provision,” Wirth concluded. This is particularly problematic not only because the structure of the sentence is ambiguous, but also because the “moment of conception” is hard to determine. “Even in Poland or Ireland, we do not have the right to life and its protection mentioned in the same sentence in the constitution. The result of this new clause is that anyone can question the abortion law currently in place and this can be done independently from the woman's choice.”

Public opinion and anti-choice voices

While Polish public opinion is divided on the issue of abortion, Hungarians widely accept it: around half of Polish citizens are in favour, while 72% of the Hungarians would leave the decision to the individual. Nonetheless, in both countries, the voice of the anti-choice opposition (both experts found that it was more appropriate to use the term anti-choice than pro-life) is increasingly loud. This development, which the activists labelled “anti-feminist backlash without a feminist movement”, noting also the lack of gender awareness, wins support in the political area. Polish Parliament thus proposed the total ban on abortion in 2011: of 460 members, 256 were in favour. In Hungary, too, “the conservative backlash has strengthened since 2010 [when the current government was elected; Author's note],” as Wirth put it, explaining recent political developments. A poster campaign is a case in point: funds received in the European Progress programme were used to promote adoption instead of abortion, causing the European Union to force the government to withdraw the campaign in June 2011.

The abortion debate, Wirth and Pabijanek agreed, also comes down to the more general context of gender roles in society. Pabijanek thus argued that controlling the female body and deciding over abortion is also a means of (male) dominance and reinforcing traditional gender roles. In Wirth's words, “combined with the trends related to SRHR, financial, infrastructural and employment regulations effectively push women out of the labour market and into the house – and into dependence, often poverty. And their children as well.”

Anti-discrimination: Slovakia and Poland lagging behind

Much of the debate about SRHR rights echoes in the more general context of sexual rights. Even though legal provisions against gender-based discrimination existed before 2004 in the V4 countries, they had to be changed in order to address them in a more structural way, lifting barriers to equal treatment, in areas such as work, gender-based violence, and sexual harassment. Maxime Forest, Researcher at PRESAGE Sciences Po, explained the impact of EU enlargment by arguing that the process has been conflict-ridden and contentious as it not only touched gender but also ethnicity and sexual orientation.

“Slovakia was kept at pressure by the Commission to pass a general anti-discrimination act very soon,” Forest started his tour d'horizon of LGBT rights in the V4 countries. “However, the government party in 2004 succeeded in omitting sexual discrimination and it was only after an infringement procedure and political turmoils after the elections in 2006 that sexual orientation was re-introduced in 2006,” he continued. In Poland, no anti-discrimination act was passed until 2011, when the European Commission had started three infringement procedures against Poland for not complying to the anti-discrimination directive. A more comprehensive act was then passed and a specific anti-discrimination body was established. All in all, the EU provided the LGBT organisations with new legal and cognitive resources to support the recognition of sexual minorities in the public space. Forest also added that “tolerance of homosexuality was often framed as Europeannes, as was the case in many other Eastern European countries.”

The Czech Republic, a latebloomer, and Hungary's aberrations around LGBT rights

“In the Czech Republic, the recognition was a long and complicated process,” Forest continued his presentation. It started already by the mid-1990s and an anti-discrimination act was passed only in 2006, mostly for political reasons. The last attempts by NGOs to promote LGBT rights in 2005 was adopted by the Senate dominated by the right-wing parties and came to President Vaclav Klaus, who considered, in Forest's words, that “sexual recognition might be meaningful to the persons but to the state it meant nothing and he vetoed it, but the veto was outvoted in 2006.”

“Hungary is perhaps the most interesting case because the recognition of same-sex partnerships and sexual minority rights came very early, but the country has more recently moved to a completely different situation with a clash between the legislation and the constitutional order on the issue,” Forest came to his last example. After a period of successful advocacy for LGBT rights (Hungary was for example the first in the region to introduce, and is still the only one to recognise same-sex partnerships on an almost equal basis with marriage), “from 2006 onwards, Hungary has engaged in violent debates with unprecedented assaults against LGBT organisations”. The new discourse is very much set in a conservative view on protecting the nation from demographic decline. Forest concluded that “as a result of the politisation of an issue which had originally triggered little contention, same-sex marriage was explicitly prohibited by the new Constitution adopted in 2011 by Viktor Orbán's two-third majority.”

Conclusion

“The recognition of sexual minorities and their rights has been framed very differently in different countries, depending on the importance of the Catholic Church, the presence of ethnic minorities or the degree of connectedness of this issue with the politics of demographic growth,” Maxime Forest drew a more general picture of sexual rights in the V4 region. “Nevertheless,” he continued, “especially in the case of countries presenting the highest degrees of homo-negativity, such as Poland and more recently Hungary, new cognitive resources have been increasingly mobilised to make of recognition a matter of Europeanness.” Therefore, Europeanisation is not only a matter of legislation and politics but also of cognitive and discursive resources that can be mobilised on the domestic level. On the other side of the coin, Katarzyna Pabijanek and Judit Wirth agreed that causes such as SRHR were now increasingly countered by a conservative backlash all around Europe – Wirth for example pointed to the fact that many Italian doctors refer to the conscience clause when refusing to provide abortion services. So, while EUropeanisation has had a positive impact on sexual rights in many ways in and outside the V4 region, the counter-movement does not seem to be restricted to the region, either.

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Photo source: "The panelists (from left to right: Katarzyna Pabijanek, Judit Wirth, Maxime Forest) during the discussions" from Annamária Tóth and Pavol Szalai for Nouvelle Europe and "Restroom Sign" on Flickr.

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