By Samantha Singson

NEW YORK, November 19, 2009 ( – Next week in Europe, a committee of human rights “experts” will discuss a draft recommendation on measures to “combat discrimination on grounds of sexual orientation and gender identity to ensure respect for human rights of lesbian, gay, bisexual and transgender persons and to promote tolerance towards them.”

Proponents claim there is a need for “specific action” because homosexuals are still subjected to “homophobia, transphobia and other forms of intolerance and discrimination.” For starters, the 47 member states of the Council of Europe (CoE) should ensure that homosexuals have the right to adopt, to access assisted reproductive treatment like in-vitro fertilization and gender reassignment surgery, as well as give full legal recognition of such gender reassignment.

The recommendation calls for states to monitor any “direct or indirect discrimination” on the grounds of sexual orientation and gender identity and to “ensure that legislative and other measures are adopted and effectively enforced.”

The recommendation lists documents from European and United Nations (UN) sources that it claims “recognize sexual orientation as a prohibited ground of discrimination” and takes note of last year’s controversial French-Dutch led statement on sexual orientation and gender identity which was signed by 66 nations in the General Assembly.

Critics point out that the UN statement cited by the recommendation is non-binding and was hotly contested when it was introduced at the UN General Assembly. In a clear showing that there is no international consensus on sexual orientation and gender identity, nearly sixty nations presented a counterstatement to the French-Dutch statement, and Russia, Belarus and the Holy See made separate statements also in opposition.

The counterstatement condemned “all forms of stereotyping, exclusion, stigmatization, prejudice, intolerance and discrimination and violence directed against peoples, communities and individuals on any ground whatsoever, wherever they occur,” while defending the ability of sovereign nations to enact laws that meet the “just requirements of morality, public order and the general welfare.”

Conservative European insiders who are monitoring the draft recommendation told the Friday Fax that they were concerned that the draft recommendation shifts from the usual principle of “non-discrimination” to a new one of “non-distinction.” Where the principle of non-discrimination still allows discrimination in proportion to justified reasons, the principle of non-distinction makes no consideration of whether a differential treatment is fair or unfair, since it is the differential treatment itself which is prohibited.

Social conservatives are also concerned by another provision in the draft which states that “neither cultural, traditional, nor religious values, nor the rules of a “dominant culture” can be invoked to justify hate speech or any other form of discrimination, including on grounds of sexual orientation and gender identity.” They fear that this could inhibit the right of churches and other faith-based organizations to speak on the immorality of homosexual acts as they might be accused of inciting intolerance.

Following next week’s meeting of the steering committee on human rights, the draft recommendation will subsequently be discussed by the Committee of Ministers of the CoE. Larger in membership and older than the European Union, the CoE is considered the chief protector and promoter of human rights in Europe.