Author: Violetta Fitsner
Violetta Fitsner holds a Master Degree from the Immanuel Kant Baltic Federal University (Kaliningrad, Russia), specialising in International and European Law. The author is currently studying at the University of Bergen (Norway) on an exchange programme.
Abstract
The right to equality and non-discrimination is one of the fundamental human rights and core obligation for states. The right to non-discrimination is enshrined in the Universal Declaration of Human Rights, as well as in several international and regional treaties to which the Russian Federation is a party. Despite this, Russia adopted a law prohibiting gay propaganda among minors which led to the case before the European Court of Human Rights. The present paper analyses the decision of the Court and also argues that this law is discriminative regarding the LGBTQ children’s rights to education and health. This article concludes that Russia should repeal or amend ‘anti-gay propaganda’ legislation to fulfil its international obligations.
Introduction
The right to equality and non-discrimination constitutes a fundamental and inalienable right of every human being.[1] The Universal Declaration of Human Rights (UDHR) provides the guarantee of equal human rights to everyone ‘without distinction of any kind, such as race, colour, sex, language, religion, political or another opinion, national or social origin, property, birth or other status’.[2] The right to non-discrimination is enshrined in international and regional conventions such as the International Covenant on Civil and Political Rights (ICCPR),[3] the International Covenant on Economic, Social and Cultural Rights (ICESCR),[4] the European Convention on Human Rights (ECHR)[5] and other instruments.
Notwithstanding the absence of reference to sexual orientation as a ground for discrimination in the UDHR and the international conventions, it falls within the scope of this right.[6] Considering the wording of Article 2 of the UDHR, the list of grounds for discrimination is not exhaustive and other grounds may be incorporated in the category of ‘other status’.[7] In this vein, the European Court of Human Rights (ECtHR)stated that the differences based solely on considerations of sexual orientation are unacceptable under the ECHR.[8]
Since the Russian Federation is a state party to the ECHR, the ICCPR and the ICESCR, it shall ensure the right to non-discrimination to its people. However, from 2006 to 2012 subjects of the Russian Federation adopted laws banning so-called ‘propaganda of homosexuality’ among minors.[9] Furthermore, the Code of Administrative Offences of the Russian Federation was amended in 2013 to specifically ban ‘the promoting of non-traditional sexual relationships among minors, … creating a distorted image of the social equivalence of traditional and non-traditional sexual relationships’.[10] The adoption of these laws entailed proceedings before the European Court of Human Rights.
This article provides the analysis of the decision of the ECtHR concerning the Russian ‘anti-gay propaganda’ law and its consequences (2) and also argues that this law has discriminative character regarding the LGBTQ children’s rights to education and health (3).
Analysis of the case Bayev and others v. Russia of the ECtHR
The facts of the case
The ECtHR addressed the complaint brought by three gay rights activists about the Russian regional legislation banning the promotion of homosexuality among minors.[11] Protesting against these laws, the applicants held demonstrations, first in front of a secondary school in Ryazan, then a children’s library in Arkhangelsk and lastly an administrative building in St. Petersburg.[12] They had banners stating that homosexuality is natural and not a perversion. Subsequently, all activists were arrested and found guilty of administrative offences.
After unsuccessful attempts to appeal the decision, the activists filed a complaint to the Constitutional Court of the Russian Federation. The Constitutional Court examined the complaint on the merits and dismissed it on the grounds of understanding of marriage as a union of a man and a woman and protection of minors from information facilitating the emergence of other interpretations of the family as an institution.[13] In response to it, three applicants brought complaints to the ECtHR claiming that Russia violated Article 10 (the right to freedom of expression) and Article 14 (the right to non-discrimination) in conjunction with Article 10 of the ECHR.
Merits
Russia presented the following legal justifications for the ‘anti-gay propaganda’ legislation: protection of morals, public health and the rights of others.[14] The European Court of Human Rights respectfully rejected these arguments.
Justification on the grounds of protection of morals
Even though the Court permits a broad margin of appreciation with respect to the “protection of morals”,[15] it is not unlimited.[16] The Government of Russia argued that acknowledgement of the social acceptance of homosexuality would be incompatible with the mores prevailing among the religious and non-religious majority of Russians and, in particular, it will contradict to their traditional family values.[17] The ECtHR indicated the European consensus on the recognition of individuals’ right to openly identify themselves as gay and to promote their own rights and freedoms.[18] The Court also found no reason to consider such recognition and maintaining the family values as incompatible and noted that the Government failed to demonstrate how an open manifestation of homosexuality would negatively affect existing ‘traditional families’ or would compromise their future.[19]
Justification on the grounds of protection of health
The protection of health under this rule encompasses public and individual health.[20] Russia asserted that same-sex relationships pose a risk to public health and the demographic situation.[21] On the contrary, the European Court of Human Rights considered that the dissemination of scientific and objective knowledge on sex and gender identity issues would have a positive effect on the protection of public health, for instance, it would contribute to state police on disease-prevention.[22] Moreover, the Court found implausible that the ‘anti-gay propaganda’ legislation could facilitate demographic growth.[23] In this regard, the Court recognised the obvious factors contributing to population growth, such as economic prosperity, the right to social security and the accessibility of childcare. The Court also emphasised that, in contrast to homosexual relations, the social approval of heterosexual couples does not depend on their intention or ability to have children.
Justification on the grounds of protection of the rights of others
The Russian Government claimed that the promotion of homosexuality could induce or force minors to adopt different sexual orientation that would make them vulnerable to abuse as well as it would encroach upon the educational choices of their parents.[24]
The European Court of Human Rights referred to Alekseyev casein which it stated that‘no scientific evidence or sociological data … suggesting that the mere mention of homosexuality, or open public debate about sexual minorities’ social status, would adversely affect children or ‘vulnerable adults’.[25] The Court also indicated that the Government did not present any science-based evidence that one’s sexual orientation or identity is susceptible to change under external influence.[26] Furthermore, Russian national law provides for adequate protection from lecherous actions against minors and dissemination of pornography to minors irrespective of the sexual orientation. In relation to the educational choices of parents, the ECtHR noted that demonstrations in question did not constitute any types of tuition nor involved the direct participation of minors.[27]
Conclusion
The European Court of Human Rights determined that the Russian ‘anti-gay propaganda’ legislation is vague and unforeseeable and it did not serve to the legitimate aim. The Court decided that these provisions ‘embodied a predisposed bias on the part of the heterosexual majority against the homosexual minority’ and that the Government failed to offer convincing reasons to justify the difference in treatment.[28] Considering the narrow State’s margin of appreciation in cases of discrimination,[29] the Court found a violation of Article 14 in conjunction with Article 10 together with a violation of Article 10 of the ECHR.
The consequences of the case
As the Russian Federation is a state party to the European Convention on Human Rights, judgments of the European Court of Human Rights are binding to it. However, in 2015, the Constitutional Court of Russia recognised its power to declare the decisions of the ECtHR ‘non-executable’ if they contradict the Constitution.[30] Despite the fact that the Constitutional Court did not make a decision relating to the execution of the Bayev and others v. Russia, it previously considered the ‘anti-gay propaganda’ law as compatible with the Constitution.[31] The Russian Ministry of Justice stressed that Russia was guided primarily by international legal norms, particularly the Convention on the Rights of the Child when adopting the legislation on the prohibition of the propaganda of homosexual relations among minors.[32] At present, the ‘anti-gay propaganda’ law remains in force.
The Russian ‘anti-gay propaganda’ law and LGBTQchildren’s rights to education and health
In addition to the right to freedom of expression, the ‘anti-gay propaganda’ legislation infringes LGBTQ children’s rights to education and health.
The right to education
The International Covenant on Economic, Social and Cultural Rights,[33] the Convention on the Rights of the Child,[34] and the European Social Charter[35] provide the right to education. The right to education includes the right to comprehensive sexual education.[36] The United Nations’ Special Rapporteur on the Right to Education affirmed it and noted that the right to sexual education is indispensable for realising other human rights, such as the right to health and the right to information.[37]
The right to education is essential for children’s development.[38] The Committee of Ministers of the Council of Europe expressed the necessity to provide children with ‘objective information with respect to sexual orientation and gender identity, for instance in school curricula and educational materials’.[39]
The obligation to ensure the right to education without discrimination is a core obligation of states.[40] The violation of this right may be claimed when discriminatory law and policies prevent students from receiving a proper education.[41] Firstly, Russian school curricula do not provide information on sexual orientation and gender identity. Secondly, violence in Russian schools has increased significantly after the adoption of the ‘anti-gay propaganda’ legislation.[42] LGBTQ students face constant threats, insults and attacks from their classmates.[43] Moreover, school teachers are usually reluctant to discuss this topic with students. Those teachers who would like to do so are not allowed to publicly express their opinion on this issue.[44] Subsequently, LGBTQ students avoid participating in discussions, may miss classes or transfer to self-education.[45] Hence, the Russian ‘anti-gay propaganda’ law is discriminative in relation to the LGBTQ children’s right to education.
The right to health
The right to health enshrined in the International Covenant on Economic, Social and Cultural Rights,[46] the Convention on the Rights of the Child,[47] and the European Social Charter.[48] The right to health includes the right to receive information about health.[49] In this regard, the Committee on Economic, Social and Cultural Rights has stated that this right envisages ‘access to health-related education and information, including on sexual and reproductive health’.[50]
The enjoyment of this right is especially important for children. The Committee on the Rights of the Child noted that states are obliged to ensure that children’s health is not undermined as a result of discrimination including such grounds as sexual orientation and gender identity.[51] The Committee also called upon states to take ‘particular efforts . . . to overcome barriers of stigma and fear experienced by, for example . . . lesbian, gay, bisexual, transgender and intersex adolescents’.[52]
The Russian ‘anti-gay propaganda’ legislation negatively affects children’s right to receive information about their health.[53] The mental health professionals indicate that this law precludes them from counselling on sexual orientation and gender identity.[54] Even those specialists who normally provide honest and scientifically accurate information on these topics are forced to limit it to avoid administrative offences.[55]
Since LGBTQ students are not able to receive the necessary information from mental health professionals, they search for it on the internet. However, the ‘anti-gay propaganda’ law bans information on homosexual relationships provided by the internet as well.[56] For instance, Deti-404, the online group that offered psychological support for LGBTQ children, was shut down and its leader was charged under this law.[57] The lack of objective information on sexual orientation and gender identity leads to an increase in the incidence of depression and suicide among minors.[58] Thus, the Russian ‘anti-gay propaganda’ legislation has a discriminative character with respect to the LGBTQ children’s right to health.
Conclusion
The obligation to not discriminate is immediate and core for every state, including the Russian Federation. Therefore, the existence of ‘anti-gay propaganda’ legislation is impermissible in a democratic society and constitutes a violation of human rights obligations. The Russian Government should not rely on the country’s ‘traditional values’ as a reason for adopting this law since no cultural differences may justify the denial of human rights.
Russia should also not invoke the protection of children as a justification of ‘anti-gay propaganda’ legislation. The law does not specify the prohibited content, for instance, inappropriate or harmful information on same-sex relations. The legislation also does not ban the propaganda of any inappropriate information on heterosexual relations. These facts confirm the discriminative character of this law.
The refusal to comply with the decision of the European Court of Human Rights reinforces stigma and prejudice and encourages homophobia in Russia. The Russian Federation should comply with the decision of the ECtHR and repeal the ‘anti-gay propaganda’ legislation in order to fulfil its international obligations. Alternatively, Russia should amend and clarify the law to eliminate the ambiguity of the wording and its extensive implementation. In addition, it is necessary to include the scientific information on homosexual relations and gender identity in the school curriculum as well as to encourage teachers to protect LGBTQ children in a case of abuse by other students. Finally, the Russian Federation should ensure access to professional mental health services and online support groups without discrimination on the ground of sexual orientation.
Sources:
[1] Stephanie Farrior, Equality and Non-Discrimination under International Law(Vol II, 1st ed, the Library of Essays on International Human Rights, 2017) 56
[2] Universal Declaration of Human Rights 1948, art 2
[3] International Covenant on Civil and Political Rights 1966, art 2(1)
[4] International Covenant on Economic, Social and Cultural Rights1966, art 2(2)
[5] European Convention o Human Rights 1950, art 14
[6] U.N.H.R. Office of the High Commissioner, ‘Born free and equal. Sexual Orientation and Gender Identity in International Human Rights Law’ (2012) HR/PUB/12/06; Indrani Sen, Human Rights of Minority and Women’s: Human rights and sexual minorities(Isha Books, 2005) 28
[7] Rebecca Hilsenrath, Charles Hamilton, ‘Equality and the Universal Declaration of Human Rights: progress and challenges for Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) equality’ in Carla Ferstman, Tony Gray (eds), Contemporary Human Rights Challenges(1stedn, 2018), part 5
[8] E.B. v France App no 43546/02(ECtHR, 22 January 2008), [93, 96];Salgueiro da Silva Mouta v PortugalApp no 33290/96(ECtHR, 21 December 1999), [36]
[9] Bartenev Dmitri G., Kirichenko Kseniya A., ‘Review of the prohibition of propaganda of non-traditional sexual relations by the Russian Constitutional Court: the victory or prejudices?’ (2014) 6 Comparative Constitutional Review 132
[10] Code of Administrative Offences of the Russian Federation 2001, art 6(21)
[11] Bayev and others v RussiaApp no 67667/09, 44092/12, 56717/12 (ECtHR, 20 June 2017)
[12] Ibid, 10, 14, 17
[13] The decision of the Constitutional Court of the Russian Federation, [2014], N 24
[14] European Convention o Human Rights 1950, art 10(2)
[15] Handyside v the United Kingdom App no 5493/72(ECtHR, 07 December 1976), [48]
[16] Dudgeon v the United KingdomApp no 7525/76(ECtHR, 22 October 1981), [59]
[17] Bayev and others v RussiaApp no67667/09, 44092/12, 56717/12 (ECtHR, 20 June 2017), [65]
[18] Alekseyev v RussiaApp no 4916/07, 25924/08 and 14599/09(ECtHR, 11 April 2011), [84]
[19] Bayev and others v RussiaApp no 67667/09, 44092/12, 56717/12 (ECtHR, 20 June 2017), [67]
[20] Bernadette Rainey, Elizabeth Wicks, Clare Ovey, ‘Jacobs, White & Ovey: The European Convention on Human Rights’(2017) 17 Oxford University Press 768, 355
[21] Bayev and others v RussiaApp no 67667/09, 44092/12, 56717/12 (ECtHR, 20 June 2017), [72]
[22] Ibid
[23] Ibid, [73]
[24] Ibid, [74]
[25] Alekseyev v RussiaApp no 4916/07, 25924/08 and 14599/09(ECtHR, 11 April 2011), [86]
[26] Bayev and others v RussiaApp no 67667/09, 44092/12, 56717/12 (ECtHR, 20 June 2017), [78]
[27] Ibid, [80]
[28] Bayev and others v RussiaApp no 67667/09, 44092/12, 56717/12 (ECtHR, 20 June 2017), [83]
[29] X and Others v AustriaApp no 19010/07(ECtHR, 19 February 2013), [99]
[30] The decision of the Constitutional Court of the Russian Federation, [2015], N 21
[31] The decision of the Constitutional Court of the Russian Federation, [2014], N 24
[32] Ministry of Justice of the Russian Federation, About the complaints “Bayev and others v. Russia” and “Davydov and others v. Russia”, (14 November 2017) <https://minjust.ru/ru/novosti/o-zhalobah-baev-i-drugie-protiv-rossii-i-davydov-i-drugie-protiv-rossii> accessed 15 November 2019
[33] International Covenant on Economic, Social and Cultural Rights 1966, art 13
[34] Convention on the Rights of the Child 1989, art 28
[35] European Social Charter 1961, art 17 (2)
[36] Committee on Economic, Social and Cultural Rights, ‘General Comment No 22 on the Right to Sexual and Reproductive Health’ (2016) U.N. Doc. E/C.12/GC/22, 9; Committee on the Rights of the Child, ‘General Comment No 15 on the Right of the Child to the Enjoyment of the Highest Attainable Standard of Health’ (2013) U.N. Doc. CRC/C/GC/15, 59; Committee on the Rights of the Child, ‘General Comment No 20’ (2016) CRC/C/GC/20, 59-61; Committee on the Rights of the Child, ‘General Comment No 4’ (2003) CRC/GC/2003/4, 17
[37] UN General Assembly, Report of the United Nations Special Rapporteur on the Right to Education (2010) U.N. Doc. A/65/162, 19
[38] A. Reis Monteiro, ‘The right of the child to education: what right to what education?’ (2010) 9 Procedia Social and Behavioral Sciences 1988, 1990
[39] Committee of Ministers, Recommendation CM/Rec(2010)5, para. 32
[40] Fons Coomans, ‘Exploring the normative content of the right to education as a human right: recent approaches’ (2004) 50 Persona y Derecho 61, 79
[41] Fons Coomans, ‘Identifying Violations of the Right to Education’ (1994) <https://www.right-to-education.org/resource/identifying-violations-right-education> accessed 15 November 2019, 129
[42] Human Rights Watch, No Support. Russia’s “Gay Propaganda” Law Imperils LGBT Youth Report, (11 December 2018) <https://www.hrw.org/report/2018/12/11/no-support/russias-gay-propaganda-law-imperils-lgbt-youth> accessed 15 November 2019
[43] Ibid.
[44] Alexander Kondakov, ‘Configurations of Law: How Does the Law on “Propaganda” Function in Schools’ (2017) 10 (5) The Journal of Sociology and Social Anthropology 187, 194-195
[45] Alexander Kondakov, ‘Configurations of Law: How Does the Law on “Propaganda” Function in Schools’ (2017) 10 (5) The Journal of Sociology and Social Anthropology 187, 194-195
[46] International Covenant on Economic, Social and Cultural Rights1966, art 12
[47] Convention on the Rights of the Child 1989, art 24
[48] European Social Charter, 1961, art 11
[49] Eleanor D. Kinney, ‘The international human right to health: what does this mean for our nation and world’ (2001) 34 Indiana Law Review 1457, 1468
[50] Committee on Economic, Social and Cultural Rights, ‘General Comment No 14: The Right to the Highest Attainable Standard of Health’ (2000) U.N. Doc. E/C.12/2000/4, 11
[51] Committee on the Rights of the Child, ‘General Comment No 15’ (2007) CRC/C/GC/15, 8
[52] Committee on the Rights of the Child, ‘General Comment No 20’ (2016) CRC/C/GC/20, 60
[53] Bartenev Dmitri G., Kirichenko Kseniya A., ‘Review of the prohibition of propaganda of non-traditional sexual relations by the Russian Constitutional Court: the victory or prejudices?’ (2014) 6 Comparative Constitutional Review 132, 137
[54] Human Rights Watch, No Support. Russia’s “Gay Propaganda” Law Imperils LGBT Youth Report, (11 December 2018) <https://www.hrw.org/report/2018/12/11/no-support/russias-gay-propaganda-law-imperils-lgbt-youth> accessed 15 November 2019
[55] Human Rights Watch, No Support. Russia’s “Gay Propaganda” Law Imperils LGBT Youth Report, (11 December 2018) <https://www.hrw.org/report/2018/12/11/no-support/russias-gay-propaganda-law-imperils-lgbt-youth> accessed 15 November 2019
[56] Human Rights Watch, ‘Russia Censors LGBT Online Groups’ (8 October 2019) <https://www.hrw.org/news/2019/10/08/russia-censors-lgbt-online-groups> accessed 15 November 2019
[57] Equal Rights Trust, ‘Justice or Complicity? LGBT Rights and the Russian Courts’Report (September 2016) <https://www.equalrightstrust.org/resources/justice-or-complicity-lgbt-rights-and-russian-courts> accessed 15 November 2019, 78-85
[58] Russian LGBT Network, NGO Alternative Report 2013 for the United Nations Committee on the Rights of the Child Commentary to the Fourth and Fifth Periodic Report by the Russian Federation CRC/C/RUS/4-5 (2013) <https://lgbtnet.org/en/content/alternative-report-2013-un-committee-rights-child> accessed 15 November 2019, 6
