By Milena Adamczewska – Stachura, Former Senior Adviser, Office of the Polish Commissioner for Human Rights
On 27 March 2019 a municipality in Poland (Świdnik) adopted a declaration to be free from a so-called “LGBT ideology”. The document, mostly chaotic and to some extent difficult to even understand, nonetheless alarmed the Polish Commissioner for Human Rights (the Ombudsman) from the very first moment. Now, over 18 months later, nearly 1/3 of Poland’s territory is considered to be an “LGBT free zone” (the issues of this term will be addressed later). The problem is constantly discussed, nationally and abroad. The European Parliament has adopted a resolution on the topic and the European Commission reacted by rejecting EU funds for some of the municipalities, which proclaimed homophobic and transphobic declarations. The battle against the anti-LGBT resolutions is also taking place in Polish administrative courts. Thanks to the complaints lodged by the Ombudsman, 4 of the challenged resolutions have been found invalid so far (however, the municipalities appealed).
This blog post tells the story of combating the “anti-LGBT resolutions” from behind the scenes. From the perspective of the Ombudsman’s Office, it reveals the details of legal actions against the hateful declarations, explains why this issue is not only political and what the hurdles are in this legal fight. The origin of the term “LGBT-free zones” will also be explained, and why it could be confusing. Finally, the aim is also to address the inevitable question of the future – when and how will the shameful story of “anti-LGBT resolutions” end?
The story of stubbornness
This story starts with stubbornness. When everyone realised that the first “anti-LGBT” declaration of Świdnik was not a single case and that we were dealing rather with a domino effect, impossible to stop with soft measures such as statements (despite the efforts made), the Ombudsman insisted to react with legal measures. And it was not an easy idea to implement. It might seem obvious that in a democratic state, which guarantees in its Constitution the rule of law and the principle of equal treatment (as Poland does), a State actor simply cannot declare itself free from “LGBT ideology”. Yet for lawyers, sometimes formal obstacles cloud the intuition or even common sense. At first glance, the homophobic and transphobic declarations seemed to be confusing and their legal force and effects appeared questionable. The acts stated for instance:
“We shall not allow exerting administrative pressure to comply with political correctness (rightly referred to as homopropaganda) in selected professions (teachers, scientists, businessmen, lawyers)”
And “We shall not allow for officers of political correctness (the so-called ‘lighthouse keepers’) to be installed in schools as it stands in conflict with the law and the good of our children”
(source, where translation of an entire resolution can be found: https://lgbtfreezones.pl/the-act).
With difficulties to sometimes even understand what the councils meant by certain terms, it seemed almost impossible to argue in court that the resolutions had any legal effects, and thus could be subject to judiciary control. But the Ombudsman got stubborn and insisted to look at the bigger picture and pursue legal action. Rightly so, as we would understand later on.
The story of challenges
It is important to stress that not all the “anti-LGBT” resolutions are identical. The information about over a 100 “LGBT-free zones” in Poland, which dominated the international discourse, firstly – refers to two different types of municipalities’ acts, secondly – uses a term which is not used in any of the resolutions but has been introduced as an artistic project. Indeed, yellow “LGBT-free zone” street signs, placed next to towns’ or municipalities’ signs names were not placed there by the public authorities, but by an activist and artist Bart Staszewski. He created those signs for the purpose of taking pictures, as a happening aimed to direct attention to the possible real-life effects of the discriminatory resolutions (read more about the project here: https://lgbtfreezones.pl/project).
While the idea behind the project is definitely notable and the term is very accurate, its adoption in the international debate unnecessarily provided a means of defense for the Polish authorities, as they are focusing the discussion on the fact that “LGBT-free zones” practically do not exist. To not support this line of defense, the Ombudsman – and this blog post – refer to “anti-LGBT” resolutions, which cover two types of acts:
- local councils’ acts which directly mention LGBT matters in their titles or in the content of the act, in most cases by declaring “freedom from LGBT ideology”, and
- the “Regional Charter of Family Rights”.
The latter, while discriminatory against single-parent and LGBTI families, as they strongly support and favour the traditional heterosexual family model, are nevertheless way more difficult to challenge in court than the local councils’ acts, as they hide discriminatory content behind positive language of family protection.
Therefore, the legal actions undertaken by the Ombudsman relate only to the “free from LGBT ideology” declarations. Precisely to 9 of them, selected based on such factors as: territorial jurisdiction and other procedural matters; the alleged level of interference; and the applicability of arguments to the particular act. The aim was – as it is in strategic litigation – to obtain a final judgement in a precedent case, which would prove the point that the resolutions are unlawful and are not, as argued by the other side, harmless declarations without legal effects.
The overarching question was how to argue that the resolutions are of a legal, not only a political, nature. This argument was necessary to be made for the purpose of admissibility of the complaints, but also to prove the discriminatory effects of the resolutions. What came as support, besides the legal analysis provided by a notable administrative law professor, Dawid Sześciło, were numerous individual motions addressed to the Ombudsman by citizens. LGBTI persons, living in municipalities and regions which adopted the resolutions, stated that they felt excluded from their local community, that they fear being discriminated against, that they consider the acts to violate their dignity and create a degrading environment. The follow-up questions were easy. Will the director of a public school – officially supervised by a local government, which declared itself free from “LGBT ideology” – be brave enough to organize lessons on LGBTI rights? Will the head of a local administrative body, in such a municipality, hire a person who is not only openly gay but also an activist involved in the public debate? Will a local library decide to host a public event organized by a civil society organization, standing for LGBTI rights?
The chilling effect was unquestionable. Building on it, the complaints finally argued that the resolutions violate Polish administrative law, the Polish Constitution, the European Convention on Human Rights and EU law – the principle of freedom of movement and the Charter of Fundamental Rights. The allegations referred to the rule of law, the principle of equal treatment, human dignity, freedom of speech, the right to private and family life and the right to education. As reference, the judgements of the ECHR (e.g. Bayev and others v. Russia; Dudgeon v. United Kingdom) and the CJEU (e.g. C-507/18 – Associazione Avvocatura per i diritti LGBTI; C-673/16 – Coman) on violations of European law were put forward. As was an alternative motion to refer a question to the CJEU for a preliminary ruling. All in!
The story of success
The Ombudsman lost the first case. The Administrative Court in Cracow rejected the complaint as inadmissible, by finding that the resolution is a political declaration, which does not fall under judiciary control. While the court did not even consider the merits of the case, the other side (meaning the ultra-conservative NGO Ordo Iuris, which provides legal support to municipalities in the whole process; see the organization’s website to learn more about their views and role played in these proceedings: https://en.ordoiuris.pl/family-and-marriage/are-there-lgbt-free-zones-poland-report) announced their success. Especially, as in the two following cases, the courts’ rulings were identical.
Yet on 14 July 2020, the Administrative Court in Gliwice found the resolution of the municipality Istebna invalid, by agreeing with all the violations alleged by the Ombudsman. Three other administrative courts in three other cases followed. The score – 4:3. However, in this game it is not as much about the numbers, as it is about what they stand for. The judgments which found the “anti LGBT resolutions” invalid are an unprecedented step in the protection of LGBTI rights in Poland. The courts did not limit themselves to the consideration of administrative arguments. They confirmed that the challenged acts are discriminatory, that they violate fundamental human rights, that the term “LGBT ideology” in fact refers to LGBT persons and using it equates to turning a blind eye to reality, when one does not want to see the real consequences of one’s words. The courts saw the bigger picture. And while the municipalities’ appealed (as did the Ombudsman in the lost cases) and the Supreme Administrative Court will have the last word – this is already a huge success.
The story with an open ending
It could be said that the final judgements of the Supreme Administrative Court will be either a happy or bitter ending. Yet it seems to be too simple and a zero-sum conclusion in such a complicated case. The legal fight against the “anti-LGBT” resolutions is a means, not an end. The goals though, could be looked at from different angles. Some of them – like to eliminate all the LGBT-phobic acts, or even institutional homophobia & transphobia in general, are either out of reach or at least a long way to go. The others – like stopping the trend of adopting similar resolutions and weakening the chilling effect, which they have caused – are already reached. What is certain is that no matter what the judgements of the Supreme Administrative Court are, the so far successful rulings already give hope, strength and support to the LGBTI community, as did the interest and involvement of international institutions. The story is open-ended – but not without a moral.
The views on this blog are always the authors’ and they do not necessarily reflect Equinet’s position.