Poland’s Supreme Administrative Court overturns the Voivodeship Administrative Court’s ruling regarding the Warsaw City Hall’s ideological program

Poland’s Supreme Administrative Court, in a judgment dated September 9 (II GSK 1739/23), set aside the judgment of the Voivodeship Administrative Court in Warsaw, which had previously annulled the supervisory decision of the Masovian Voivode. The Voivode (that is, the provincial governor)—in line with the recommendations expressed in the opinion of the Ordo Iuris Institute sent to him—declared the ordinance of the Mayor of the Capital City invalid. The ordinance concerned the announcement of a call for proposals for the implementation of a public task that includes, among other things, “raising awareness to counter discrimination based on gender identity and gender expression in Warsaw service establishments participating in the project.”

“Such provisions give rise to consequences that are inconsistent with the fundamental principles of the Polish legal order. The practical consequences of efforts to counter “discrimination on the basis of gender identity or expression” may create situations in which employees of service establishments would be required to use—at the request of third parties—preferred pronouns, including those that do not correspond to biological sex or are gender-neutral. Such coercion violates the fundamental principles of the Republic of Poland’s legal order, which is based on a dichotomous division into two sexes: male and female, and also infringes upon the constitutional freedoms of conscience and expression of employees who would be subject to it,” notes Marek Puzio, the attorney who represented the Ordo Iuris Institute at the hearing before the Supreme Administrative Court.

Moreover, the project’s planned “raising awareness and increasing the level of knowledge” about discrimination on the basis of gender identity also covered customers of establishments, including minors.

In his decision, the Masovian Voivode explicitly stated that the implementation of the public task covered by the competition (announced by Ordinance No. 1931/2021) de facto serves to promote gender ideology, whose main premise is a departure from biological criteria for determining a person’s sex, as well as undermining the traditional model of the family and marriage as a union between a woman and a man.

Poland’s Supreme Administrative Court—unlike the provincial court—held that in proceedings concerning the review of voivodes’ supervisory acts over the activities of local governments, social organizations may not be participants, which means that the Ordo Iuris Institute should not have been admitted to participate in the case. For this reason, the Institute’s cassation appeal was dismissed. At the same time, however, the court reviewed the complaint, heard the Institute’s counsel, who that day filed an additional pleading in the case, and, in the oral reasons for its decision—granting the voivode’s cassation appeal—pointed to the allegation, also raised in the Ordo Iuris complaint, that the court of first instance had violated Article 141 § 4 of the Law on Proceedings before Administrative Courts. The full written reasons for the Supreme Administrative Court’s judgment have yet to be drafted.

Although the authorized representatives of the Mayor of the Capital City Warsaw officials, rebutting the allegations contained in the voivode’s supervisory decision and in the opinion previously sent to him by Ordo Iuris, cited, among other things, the existence in Warsaw of a long-term program for cooperation with non-governmental organizations, the Voivodeship’s Administrative Court’s judgment favorable to the city was vacated, and the case was remanded for reconsideration by the Voivodeship Administrative Court in Warsaw.

Although the Supreme Administrative Court’s judgment does not end the proceedings (the Voivodeship Administrative Court must rehear the case with a different panel), it paves the way for the definitive removal from the Polish legal system of the ordinance issued by the Mayor of Warsaw. Depending on the content of the judgment’s written justification, which has yet to be prepared, it may also serve to limit, in the future, the scale of implementing similar ideological projects funded with public funds.

Source of cover photo: iStock