Against discrimination and ideology. Ordo Iuris' response to the LGBT Strategy of the European Commission

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The European Commission is trying to introduce solutions which has no source in the applicable national and international law and which are dangerous to economic freedom and freedom of speech. The “European strategy for LGBTIQ equality” suggests, inter alia, criminalising 'LGBTIQ hate speech' as a Euro crime at the EU level, creating 'rainbow offices' in police stations, or restricting development of AI programs simply because they recognise faces based on biological gender. The latest research proves that the model of combating discrimination proposed in the Strategy is ineffective. The scale of negative phenomena concerning people with homosexual inclinations is much larger in countries where solutions that deeply reconstruct family law or interfere with freedom of speech have been introduced. The Commission also repeats false information about the alleged existence of “LGBT-free zones” in Poland. The Ordo Iuris Institute prepared a report on this matter.

The “Strategy for LGBTIQ Equality 2020-2025” published by the European Commission on 12 November is the first document of this rank issued by the European Union. Some of the proposals contained in the document do not raise any doubts and result directly from the general principles and guarantees of the human rights system. These include, among other things, postulates of combating discrimination in the workplace, limiting unnecessary surgical interventions in relation to children with gender identity disorders or combating violence and aggression against people with different sexual inclinations.

However, there are attempts in the Strategy to introduce new concepts and categories of rights which are not justified by the existing standards and on which there is no consensus among the Member States of the European Union. They also constitute an illegitimate attempt to go beyond the powers granted to the Union in the treaties and the principles of proportionality and subsidiarity, and they also directly affect the Polish constitutional order.

In particular, the declared adoption by the European Union of the controversial 2008 Anti-Discrimination Directive, which has been strongly opposed by Member States, non-governmental organisations and entrepreneurs for years, can be considered questionable. Strenuous efforts to adopt this binding act, despite its incompatibility with the applicable treaty law and the open opposition of numerous Member States, is completely unjustified.

Concepts such as gender identity, transgender, non-binary people, which appear in the Strategy, are the subject of numerous controversies and they have never been accepted by the international community in any binding treaty. It may be very disturbing that, unlike in many existing EU publications, the word “trans” was not extended to “transsexual” or “transgender” throughout the Strategy. A complete novelty is the introduction of the category of 'LBTIQ women' and the unfair privileging of such people, granting them benefits that until now have been simply reserved for women. This gives rise to a reasonable suspicion regarding a concealed intention to manipulate the concept of gender already at the terminological level.

Postulates related to granting the possibility of transcription of civil status records (marriages, adoptions) of persons remaining in an institutionalized same-sex relationship in states that do not recognise these institutions may be inconsistent with the applicable law of some Member States (including Poland). A particular concern may be raised by the proposal to interpret the Directive on the free movement of persons in a way that allows them to be recognised throughout the EU, as well as by the proposal for the Council to adopt legislation in 2021 criminalising 'hate speech' and 'hate crimes against LGBTIQ' as 'Euro crimes' at European Union level. The 2008 framework decision on combating certain forms and manifestations of racism and xenophobia by means of criminal law serves as a reference.

The latest research published by the Agency for Fundamental Rights shows that the anti-discrimination model adopted by the European Commission is not effective. In countries that for years have applied an anti-discrimination policy based on a deep reconstruction of family law and interference with freedom of speech or economic freedom, the scale of negative phenomena affecting people with homosexual tendencies or gender identity disorders is much larger than in countries such as Poland, which did not take such actions.

The aim of the report prepared by Ordo Iuris is to analyse postulates included in the Strategy in terms of their effectiveness and compliance with applicable law. It cites the latest research by the Agency for Fundamental Rights, based on responses sent by nearly 140,000 respondents. The individual proposals of authors of the document are also compared with the most important principles which form the basis for functioning of the European Union (principles of equality, prohibition of discrimination, subsidiarity and proportionality). The analysis also includes the issue of national law, as a large proportion of postulates contained in the Strategy stand in opposition to the applicable constitutional order in Poland.

“The figures presented in the ECJL report concerning financing of the most important international institutions such as the Council of Europe or WHO and connections of judges sitting in the European Court of Human Rights are alarming and make one reflect on the independence of these bodies. Without full transparency in this regard, it is difficult to talk about implementation of the rule of law by these institutions”, emphasizes Karolina Pawłowska, Director of the Ordo Iuris Center for International Law.