Magdalena Olek: Ideological document attacking Poland – Ordo Iuris comment on European Parliament resolution

Ordo Iuris

European Parliament has adopted a scandalous resolution “on public discrimination and hate speech against LGBTI people, including LGBTI free zones.” Adoption of the document had been preceded by a resounding debate on alleged discrimination against people having LGBT lifestyle in Poland. Authors of the resolution impose the concept of “LGBTI rights” as fundamental rights and call on, inter alia, Polish government to revoke resolutions “attacking LGBTI rights” originated from local authorities. While adopting the document, Members of the European Parliament relied on unchecked information and repeated false allegations against Poland after some media. Experts from the Ordo Iuris Institute for Legal Culture have passed their reservations to the European Parliament.

The resolution promotes ideological demands of LGBT lobby and is a call for actions which might attack human rights. In the title and content of the document its authors use a term “hate speech” which is undefined by Polish and international law. The term “hate speech” used in the resolution is imprecise and criticised by lawyers, because it is hard to draw the line between freedom of speech, including justified but definite criticism, and so-called “hate speech”. MEPs recommend that “the Member States put in place simple procedures enabling members of the public to report the presence of hateful content online” (pt 8) and call to “develop and disseminate tools and mechanisms for reporting hate crimes and hate speech, and to ensure that any case of alleged hate crime of hate speech is effectively investigated, prosecuted and tried (pt 9), which in effect means implementation of repressive censorship and could violate freedom of conscience and freedom of speech.

Furthermore, authors of the resolution erroneously identify “LGBTI rights” with fundamental rights (e.g. pt 1 of the resolution), and they issue a call for monitoring fundamental rights and democracy in the EU Member States, including Poland, on these grounds (pt 14). Moreover, MEPs call on the Commission “to assess whether the creation of the LGBT free zones amounts to a violation of freedom of movement and residence in the EU” and “to assess whether Poland has failed to fulfil an obligation under the Treaties and whether it should deliver a reasoned opinion on the matter, in accordance with Article 258 TFEU” (pt 16 of the resolution).

What is important, a group of rights called “LGBTI rights” does not exist within the international law. Certain states confer rights reserved for marriage on persons maintaining a relationship different from opposite-sex marriage, but there is no grounds to recognise them as fundamental rights. Forcing other states to accepts undefined group of “LGBTI rights” is also unauthorised.

What is more, the resolution contains false slanderous statements about Poland in terms of alleged discrimination against LGBTI people (pt P, 3 and 24). First of all, it should be emphasized that, contrary to the title of the document, none of Polish local governments proclaimed itself “LGBTI free zone”. Certain Polish communes, districts and regions have assumed non-legally binding stances “on objection to introduce ‘LGBT ideology’ to local governments and to promote this ideology in public life”. Councillors also reiterated that these documents are not about LGBTI people, but LGBT movement. It is organisations within the movement, not particular persons or their communities, that are defined as “ideology” or “subculture” in resolutions. There has been no stance of local government which would imply “LGBT free zone”, mentioned by “Gazeta Polska”, Polish news magazine. Resolutions of local governments “against LGBT ideology” are within Polish law. Provincial Administrative Court in Kielce dismissed action brought by a lawyer from Poznań against the stance assumed by councillors from Świętokrzyskie Province, in order of 30 September 2019. The compliance between resolutions and Polish legal order has been also confirmed by analysis conducted by Ordo Iuris Institute.

Documents expressing objection against LGBT ideology are a definite response to so called “LGBT+ declaration”, published on 18 February 2019 by Rafał Trzaskowski, Mayor of Warsaw, and inspired by the most radical organisations within the LGBT movement. What is important, on 25 February 2019 the declaration was given a negative assessment by the city’s Commission on Equal Treatment, because it favours certain social group instead of equal treatment: “a situation where one of minority groups is more protected than any other raises a question of whether local government treats citizens of the capital in an exactly equal way [...] Instead of protecting and assuring equal treatment, the document in fact divides people discriminated against into those who are more and less protected. It introduces gradation of the sense of harm and injustice, depending on the premise which results in discrimination. Doing so, it actually discriminates.” “LGBT+ declaration” was criticised also by Hanna Gronkiewicz-Waltz, former Mayor of Warsaw, who stated: “I think that we should not sign anything with particular groups, because the same concern must be granted to seniors, LGBT people or refugees.”

MEPs also criticised the adoption of “Regional Charter of Family Rights” (SKPR) in some local governments, stating that it allegedly discriminates against people who identify as LGBT. In fact, the adoption of SKPR aims to reinforce the family as a fundamental social group and warrant protection against the influence of ideologies which deny its autonomy and identity. The Charter primarily supports parental rights enshrined in the Constitution of Poland and declares willingness to conduct pro-family policy within the local government by such measures as making family-friendly law.

Consequently, it should be stated that Poland has not violated the European Union’s values nor the Treaty obligations. Thereby it is entirely illegitimate and objectless to call on Polish authorities to publicly condemn alleged discrimination against LGBT people. Moreover, expecting Polish authorities to revoke stances of local governments (pt 24 of the resolution) must be concerned as unauthorised and infringing the principle of subsidiarity and EU’s competences. It should be reminded that European Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein (Article 5(2) of the Treaty on European Union). On the one hand, area of freedom, security and justice falls within the competence shared between the Member States and the Union (Article 4(2) of the Treaty on the Functioning of the European Union), being subject to the principle of subsidiarity and proportionality. On the other hand, the European Parliament has no competence to force the Member State to take specific measures. According to the rule of law in Article 7 TEU, the European Union Council may address recommendations to the Member State, whereas pursuant to Article 258 TFUE it is the Commission who may deliver a reasoned opinion if they consider that a Member State has failed to fulfil an obligation under the Treaties.

Authors of the resolution again engage in a controversial issue of sexual education. They highlight alleged discrimination of “young LGBTI people” in educational settings. They claim that in their opinion schools should provide “health and sexuality” education in order to prevent “gender stereotypes, LGBTI-phobia and gender-based violence (pt 4).

Finally, it is worth mentioning that equality before the law and freedom of expression fall within the core values stated in the Constitution of Poland and the pillars of European democratic society. These values are respected and protected by the Polish authorities, which is demonstrated by protecting so- called “Pride Parades” held in Polish cities and the police taking actions against people who disrupt such events, and pursuing one of fundamental civil liberties – freedom of speech.

Magdalena Olek - Deputy Director of Ordo Iuris Center of International Law