Austrian MEP Ulrike Lunacek's recently put forward the "Report on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity". This is one of a number of Own-Initiative-Reports that pass through the European Parliament every so often.
They are non-binding, and often comment on issues that are outside the EU's ability to control. In this case, it was voted through 40 votes to 2, but has not yet become anything resembling law. Though that could happen in early 2014, with more votes on the way.
Although the report might have noble goals and aspirations, it is also riddled with fundamental flaws. The central issue is that it regards LGBTI people as an entirely separate class, attempting to make LGBTI rights into human rights more broadly.
European Dignity Watch (EDW) describes this in the following terms: "To claim that LGBTI rights are human rights is as meaningful as saying 'sport rights are human rights' or 'classical music lover's rights are human rights'. Human rights are not there to protect the specific interests of a particular group but to protect the innate dignity of every human person."
Here are four reasons why the new report needs to be through with a more critical eye.
1. Why should LGBTI people get a veto?
The report included the statement: "The Commission should mainstream issues specific to transgender and intersex people throughout the relevant EU policies, mirroring the approach adopted in the Gender Equality Strategy." To 'mainstream' an issue in this context means, as is explained by human rights blogger JC von Krempach: "When a particular policy is 'mainstreamed', this means that henceforth all political initiatives and legal measures must undergo a formal check regarding whether they stand in conflict with that particular policy.
"'Mainstreaming' LGBT rights would mean that no legal measure can be adopted against the will of LGBT people … This would effectively result in a sort of veto right against all and everything."
This principle could theoretically be used to categorically criminalise anything that is thought to be "hate speech" against LGBTI individuals. The problem with this is that no one has yet provided a concrete definition of what does and does not qualify as hate speech.
This could mean that a declaration by a Christian of the mere fact that they believe homosexual actions to be sinful, even if such a belief is not expressed in terms of supporting violence or legal discrimination against homosexual individuals, could be criminalised.
A more robust understanding of human rights is needed in this context. They should not be used to specifically protect a particular group's interest, but be universal.
2. No one has unfettered free speech
Another section of the report says: "The Commission and the Council of the European Union should consider that Member States adopting laws to restrict freedom of expression in relation to sexual orientation and gender identity breach the values on which the European Union is founded, and react accordingly."
The EDW points out that there is no need, however, for a specific policy relating to criminalisation of expression of sexual orientation, as there are already laws that protect free speech of all people. Although it is of course right that LGTBI people are also protected by these laws, a specific law is not required.
Furthermore, free speech, like most rights, is not absolute. The classic example of not being able to shout fire in a crowded theatre has been added to in recent times with criminalisation of libel, slander, harassment, and incitement to racial hatred. There may potentially be moments where such expression is not appropriate, and a state may wish to protect these moments legally.
For example, some governments do not consider it apt to teach young children about sex education that includes references to homosexuality. However the proposed provision could essentially make such an inclusion a requirement based on human rights.
3. Medical treatment should be equally available to all
The report also contains a suggestion that: "Member States should take account of LGBTI people within national health plans and policies, ensuring training curricula, health policies and health surveys take specific LGBTI health issues into account."
While it is appropriate that health staff understand LGBTI people in so far as they understand any group of people, the special level of understanding offered here seems bizarre.
LGBTI individuals have long been categorised as being a high risk group when it comes to medical issues.
The EDW offers the following question on this issue: "If Mrs Lunacek… truly wanted to advance human rights for all, they would not call for special advantages for LGBTI persons — nor would they call for special health plans for smokers, the overweight, or extreme mountaineers (all high-risk groups)."
4. The survey the report was based on is unscientific
The data to make this report come about was collected via deeply unscientific means that leave themselves wide open to bias and even deliberate misinformation concerns. Firstly, it was anonymous, allowing one person to submit answers multiple times. Secondly, it didn't ask for specific incidents of discrimination, rather it asked questions of people and their perception of discrimination. Third, the call to respond was heavily disseminated through LGBTI activist circles, rather than a general and more even dissemination through the general populous. Fourthly, several of the questions had loaded answers and multiple choice responses often directed people to specific answers where as a more open ended inquiry would have provided more honest feedback.