Right of Reply: Attacks on LGBTI community are warning sign of wider backlash against democracy

In his recent EUobserver opinion, Council of Europe commissioner for human rights, Michael O’Flaherty, argues that “attacks on LGBTI people are the warning sign of a wider backlash against democracy”. Violence, threats and discrimination against lesbians and gay men demand a serious human-rights response. Yet O’Flaherty shows remarkably little interest in their different causes. Instead, he treats a particular understanding of what he calls “LGBTI rights” as a measure of democracy itself. His account of democratic retreat across Council of Europe member states rests on a striking false equivalence. An Islamist homophobic attack in Berlin; authoritarian restrictions on the freedom of assembly of lesbians and gay men in parts of Eastern Europe; and a secular grassroots feminist movement challenging the erosion of women’s legal protections in UK courts are all presented as manifestations of the same “backlash”. As director of the EU Fundamental Rights Agency, O’Flaherty repeatedly warned that discrimination towards Muslims could have “potentially perilous consequences”. Yet extremists need no “phobia” directed against themselves to generate misogyny or hatred of homosexuals. The Taliban demonstrates this. Nor do such restrictions necessarily demonstrate democratic collapse. Hungary, which O’Flaherty cites, is a case in point. Hungarian voters removed Viktor Orbán from power this year; restrictions introduced under his government are under review; and Budapest Pride proceeded after the ban was lifted. O’Flaherty omits these developments entirely. The UK, meanwhile, is one of Europe’s strongest democracies and among its safest countries for lesbians and gay men. The conflict between women’s sex-based protections and gender identity was publicly debated, subjected to judicial scrutiny and ultimately resolved by the country’s highest court. Here the alleged democratic regression consists, apparently, of women winning a case. A grassroots women’s rights organisation challenged government policy, raised its own funds, fought through the courts and secured a Supreme Court judgment affirming sex in equality law, with lesbian organisations intervening to defend their rights to same-sex association. To portray this as democratic regression is not only incoherent, but profoundly misogynistic. What are the Yogyakarta Principles? There is a further irony in O’Flaherty invoking the Yogyakarta Principles, which he helped draft, as his “essential guidebook”. O’Flaherty also signed the later Yogyakarta Principles Plus 10, whose Principle 31 calls on states to end the registration of sex in identity documents and as part of legal personality. Yet removing sex as a legally-recorded category would deprive states of a basic means of implementing obligations built precisely around sex, including those arising from Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the EU treaties’ commitment to equality between women and men. The principle he champions would make key parts of it impossible to implement. O’Flaherty ends by quoting a gay man who, thanks to the Yogyakarta Principles, is supposedly now “under international human rights law, officially human”. But what of the lesbian woman whose same-sex orientation must now accommodate males as lesbians? The Yogyakarta Principles are not international law. They are a privately drafted document with no treaty status, and O’Flaherty knows this. More importantly, this misleading claim obscures the vision of human rights advanced by the Council of Europe’s human rights commissioner: the operationalisation of the principles he helped draft and the elimination of sex as a legally-relevant category. It is a false and dangerous vision in which one group becomes “officially human” at the expense of another: women and girls, whose human rights were only recently secured through sex-based protections in law. These protections are embedded in the EU Charter of Fundamental Rights. Human rights cannot be advanced by erasing the legal basis on which the rights of half of humanity depend.