ECLJ : The PACE’s draft resolution on “Discrimination on the basis of sexual orientation and gender identity” discriminates and threatens fundamental rights of other people.

(Strasbourg, France) – The European Centre for Law and Justice (ECLJ), at the request of Members of the Parliamentary Assembly of the Council of Europe (PACE), has prepared an extensive legal memorandum analyzing a draft Resolution on “Discrimination on the basis of sexual orientation and gender identity” that will be voted on by PACE on January 27, 2010, in Strasbourg.

This draft resolution (Doc. 12087) has been prepared by Mr Andreas Gross, a Socialist from Switzerland and one of the representatives of the 47 Member States parliaments.

In its memorandum, the ECLJ has examined the main provisions of the draft Resolution under the requirements of European and international law, and of the case law of the European Court of Human Rights and presented it to PACE today. The fact is that this resolution  should not result in damage to the family and negate the fundamental rights of people who are not lesbian, gay, bisexual or transgendered (LGBT) – especially in the areas of freedom of speech and religious belief.

In particular, the ECLJ has noticed that the draft resolution diminishes and even threatens the following fundamental rights:

• The freedom of speech
• The freedom of religion and conscience;
• The higher interest of children:
• The States’ sovereign interest and right to protect public morality, family and the best interests of the child.

The ECLJ concludes that the draft resolution should be amended in order to maintain the definition of the family and to protect the fundamental right to disagree with the ideology of those promoting gender identity.  The ECLJ contends that the appropriate response to violence and unjust discrimination against LGBT people should not include eliminating moral pluralism.

More precisely, the ECLJ points out that the ambiguity and the lack of definition of the concepts of “hate speech” and “homophobia” gravely endangers the freedom of speech and the public expression of religious beliefs by others.

Furthermore, the ECLJ contends this resolution jeopardizes religious freedom, and in particular, the fundamental right to act according to religious beliefs when it comes to morality. For example, in the UK, all the Catholic adoption agencies have been forced to close because of their conscientious objection to allowing same-sex couples to adopt, as required by the Equality Act Regulations 2007.

Also, the resolution promotes an artificial concept of the family and of marriage and requires national legislations to recognize same-sex marriage or partnership. Of particular concern is the attempt of this resolution to create a “right to adopt” a child. In so doing, the draft resolution infringes upon natural law, the national sovereignties, and the case law of the European Court of Human Rights.

The ECLJ recommend amending the Resolution in order to:

• Reaffirm its respect for article 9 and 10 of the European Convention;
• Provide a legal definition of “Hate Speech”, and reaffirm that this concept shall never end in a limitation of free speech;
• Provide a legal and practical definition of “homophobia”, or abandon this concept;
• Include a general provision reaffirming the fundamental right to freedom of religious opinion, in private and in public, including matters of morality.
• Reaffirm the fundamental right of individuals and of religious and confessional organizations to act according to their moral and religious beliefs.
• Reaffirm that the moral or religious ethos of employers or service providers should be duly taken into account in the appreciation of the legality of discrimination.
• Refer to Article 12 of the European Convention, recalling that it only protects the right of persons of the opposite sex to enter into the covenant of “traditional marriage.”
• Reaffirm that there is no “right” to same sex marriage or partnership under the international and European law.
• Reaffirm that marriage is a public institution that is fundamentally “child-centered”. 

Related documents

• ECLJ Memorandum on the Gross Report (16 December 2009)
• PACE Gross Report on “Discrimination on the basis of sexual orientation and gender identity”  (Doc. 12087 - 8 December 2009)
• ECLJ Legal Memorandum on the “Recognition in Europe of same-sex partnerships” (May 2008) 

The European Centre for Law and Justice presented its legal analysis on this resolution to PACE today and is urging the organization to incorporate its recommendations and suggestions as amendments prior to the scheduled vote at the end of January.

The European Centre for Law and Justice (ECLJ) is an international law firm focusing on the protection of human rights and religious freedom in Europe and worldwide.  The ECLJ is affiliated with the American Center for Law and Justice (ACLJ) which focuses on protecting religious freedom in the United States. Attorneys for the ECLJ have served as counsel in numerous cases before the European Court of Human Rights.  Additionally, the ECLJ has special Consultative Status with ECOSOC of the United Nations, and is accredited to the European Parliament.

EUROPEAN CENTRE FOR LAW AND JUSTICE