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Déclaration d’une communauté locale "libérée de l’idéologie LGBT"

Facts

On September 25, 2019, Niebylec Commune Council adopted a resolution number XI/93/2019 on the adoption of the declaration - on stopping the ideology “LGBT”. The resolution was published in the Public Information Bulletin. The legal basis for the resolution is indicated in Article 18, paragraph 1 of the Act on Municipal Self-Government. The first paragraph of the resolution expressed that, “the municipal council adopts a position expressing its opposition to the promotion and affirmation of the ideology of the so-called LGBT movements”.

In order to justify the adoption of the resolution in question, its introduction refers to the ideological war and cultural revolution, which, according to the Niebylec Commune Council, require the defence of its self-government community and making it free from LGBT ideology.

The following part of the resolution expresses a declaration of actions aimed at the realization of the above-mentioned assumption, covering primarily the area of educational tasks of schools and other educational institutions, as well as protection of teachers and entrepreneurs from political correctness and homopropaganda. A position was also formulated about the loyalty of Niebylec Commune to national and state tradition, Christian values and centuries-old culture.

The supervisory authority, i.e. the Podkarpackie Province Governor, did not make a decision on the invalidity of the resolution due to its illegality, under the procedure provided for in Article 91, paragraph 1 of the Act on Municipal Self-Government.

The acronym LGBT used in the content of the resolution is an English acronym for lesbian, gay, bisexual and transgender people. It is commonly used as an umbrella term for non-heteronormative and non-identifiable persons with a dichotomous division between male and female sex, including intersexual, pansexual, asexual or insecure people of their sexuality or sexuality. LGBT people thus make up a very diverse and large social group - an estimated 5-8% of the population (this figure cannot be accurately determined due to the difficulty of conducting statistical studies on sensitive data on psycho-sexuality). The members of this group may, therefore, represent very diverse interests resulting from different views or social positions. However, regardless of these circumstances, LGBT people constitute a social minority that enjoys special protection under the law against discrimination on grounds of sexual orientation and gender identity.

Admissibility of Complaints

In the opinion of the Ombudsman, the contested resolution interferes with human and civil rights and freedoms, which the Ombudsman guards under the Polish Constitution. The need to protect these rights and freedoms thus updates the Ombudsman’s competence to lodge an administrative complaint against the resolution in question, pursuant to Article 8 § 1 of the Codes of Administrative Procedure.

The Regional Administrative Court in Rzeszow (September 8, 2020, case number II/SA/Rz 27/20) decided to reject the complaint.

The contested resolution undoubtedly does not constitute an act of local law. It does not have the basic features of a local law act, which is the establishment of rights and obligations of a general nature, universally binding and addressed to an unspecified number of people, in this case to the inhabitants of Niebylec commune.
In the Court’s opinion, the contested resolution cannot be considered to have been adopted in a public administration case. Undoubtedly, it is not a public task assigned by law to a local government body (here : the Niebylec Commune Council), and moreover, it does not contain an element of administrative authority. As emphasised in the case law, only acts or activities that contain an element of administrative authority are within the competence of administrative courts.

D 18 janvier 2021    AMichał Zawiślak

CNRS Unistra Dres Gsrl

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