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”.
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.
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.
There is a further irony in O’Flaherty invoking the Yogyakarta Principles, which he helped draft, as his “essential guidebook”.
Principle 31 of the Yogyakarta Principles plus 10 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.
The Yogyakarta Principles are not international law. They are a privately drafted document with no treaty status, and O’Flaherty knows this.
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.