COUNCIL OF EUROPE: RESOLUTION ON NON-DISCRIMINATION ON THE GROUNDS OF SEXUAL ORIENTATION AND ON RUSSIAN LAWS

European Centre for Law and Justice ECLJ director Grégor Puppinck writes on the subject of a resolution on sexual orientation to be discussed by the Council of Europe on Thursday June 27th

On June 27th, the Parliamentary Assembly of the Council of Europe (PACE Strasbourg) “Tackling discrimination on the grounds of sexual orientation andgender identity” (Doc. 13223) submitted by the socialist Norwegian deputy Håkon Haugli. This document is primarily intended to reinforce the prevention and repression of social hostility towards homosexuality (homophobia) in order to change mentalities, policies and legislation.

will discuss a draft resolution and recommendation entitled

The Parliamentary Assembly of the Council of Europe is composed of representatives of the national parliaments of the 47 member States of the Council of Europe (including a French delegation). One of its functions is the adoption of resolutions and political recommendations for the States. The Council of Europe has set the promotion of “LGBT” rights as a political priority. It has adopted a text of reference in this matter (PACE Resolution1728/2010 and Recommendation 2010/05 of the Committee of Ministers) and created in its bosom an “LGBT Unit” whose mission is to ensure, promote and supervisethe implementation of these resolutions and recommendations.

While the texts previously adopted by the Council of Europe promoted equal rights, the draft Resolution and Recommendation to be discussed on June 27th focuses on social equality.  A major change of mentality must occur in order for the tackling of discrimination on the grounds of sexual orientation and gender identity. The array of resources recommended are vast: beginning with the recommendation of public figures to participate in gay pride, to the strengthening of the repression of homophobic speeches and acts, through the organization of “public campaigns on equality and diversity” and finally to the training of State officials in this policy.  Echoing the policy of the current French government in tackling gender stereotypes in schools, the text invites States to support and initiate projects of “prevention” of homophobia and transphobia by “address[ing] to and involving students, teachers and school staff.”

Regarding “homophobic speech,” the draft resolution requests that it be called “hate speech” and punished more harshly as such, while also recognizing that “there is no universally accepted definition of the expression “hate speech” (§ 61). This creates uncertainty in regards to the limitations of freedom of expression which this concept could itself justify (similar to the concept of Islamophobia).

More specifically, the text of Håkon Haugli forcibly condemns and calls for a “repeal” of the Russian laws on the “propaganda of homosexuality amongst minors” and similar laws adopted or under discussion in the Ukraineand Moldova. These laws prohibit “propaganda of same-sex relationships aimed at children,” that is to say the promotion, including through the media, of “propaganda of homosexuality, lesbianism, bisexualism and transgenderness amongst minors.” Mr. Haugli can build on the Commission of Venice, a body of expertise from the Council of Europe, which rendered on June 18, 2013 an opinion that, after an analysis of these laws, condemned their application and requested their repeal (Opinion 707/2012 – CDL-AD (2013) 022). This opinion, noting that homosexuality is a sexual orientation protected on the same terms as heterosexuality which stresses in particular that of “‘public morality” [i.e.] the values and traditions including religion of the majority and ‘protection of minors’” that are invoked byRussia, can not justify these laws (§ 78). According to this opinion, the only acceptable prohibition is limited to sexually explicit and obscene contents, regardless of sexual orientation.

If, on the one hand, the report lamented “a worrying setback” of LGBT rights in Eastern Europe, it congratulated on the other a “significant progress” in other countries where there exists “the recognition or strengthening of rights for LGBTs in the areas of adoption, civil partnership and marriage, and the introduction of stronger measures against homophobic and transphobic speech and violence.”(Para. 95) In fact, this cultural divide is increasing in proportion as the West becomes more libertarian andEastern Europetries on the contrary to reconstruct itself culturally. The Council of Europe is one of the first victims of this cultural divide because, as rooted inWestern Europe, it is no longer able to bring about unity amongst its 47 member states regarding these social issues. Increasingly, it oscillates between paralysis and the struggle for power. Where as the spirit of consensus long ruled, as in the Committee of Ministers and in the European Court of Human Rights, division and confrontation are now present, extending between radically divergent positions. Russian law on the protection of minors serves as an example of this hostile spirit in that it is the exact opposite of the French policy against gender stereotypes in schools.

This East-West divide, replicated itself in a second cultural division within every country in the West. The French social movement born around the “Manif pour Tous,” by its size and politico-cultural dimension, indicate that Francehas not completely acquired a libertarian mentality. Because of its size, it fits inline with recent major social movements (colored revolutions, Arab Spring, Spanish and Greek Indignados) but with a message of cultural overhaul rather than revolution. The role of European institutions and of the drafted resolution must be understood in this context of cultural conflict. Håkon Haugli in his report illustrates this cultural conflict, stating that “[i]n Ukraine, adopting a comprehensive anti-discrimination law [thus including non-discrimination based on sexual orientation] is part of the conditions that the European Union has set for the conclusion of an association agreement.”

Because the “LGBT issue” specifically targets the definition of individual freedom more specifically in the link between nature and culture, it has become a symbol of a profound cultural conflict permanently dividingEurope. Far from the ideal of the founding fathers of the Council of Europe, the European “spiritual and moral values” are again in crisis and are overshadowed by the power struggle.