Bayev and Others v Russia
The
Third Section of the European Court of Human Rights issued today its judgment
in Bayev
and Others v Russia in which it held – by six to one – that Russian ‘homosexual propaganda laws’
are in breach of Article 10, alone and in conjunction with Article 14 of the European Convention on Human Rights.
This
judgment is crucial in many ways. It is the first time that the Court has found a
violation of Article 14 in conjunction with Article 10 in relation to sexual
orientation discrimination, and this is the first judgment that deals with
Russian ‘homosexual propaganda laws’ enacted after Alekseyev v Russia.
The Court has rejected all the arguments of the Russian government and, in doing so, has adopted a strongly worded
reasoning that leaves no space for ambivalent interpretations.
The Facts
The
applicants were three Russian gay activists alleging that the legislative ban
on ‘propaganda of non-traditional sexual relations aimed at minors’ violated
their right to freedom of expression and was discriminatory (§ 3).
On
30 March 2009 the first applicant was charged for holding a static
demonstration in front of a secondary school in Ryazan, holding two banners
which stated ‘Homosexuality is normal’ and ‘I am proud of my homosexuality’. On
11 January 2012 the second and the third applicants held a static demonstration
in front of a children’s library holding banners stating ‘Russia has the
world’s highest rate of teenage suicide. This number includes a large
proportion of homosexuals. They take this step because of the lack of
information about their nature. Deputies are child-killers. Homosexuality is
good!’ and ‘Children have the right to know. Great people are also sometimes
gay; gay people also become great. Homosexuality is natural and normal’. Finally,
on 12 April 2012 the third applicant held a demonstration in front of the St
Petersburg City Administration to protest against the newly amended legislation
that introduced administrative liability for public activities aimed at the
promotion of paedophilia and of homosexuality, bisexuality and/or
transgenderism among minors. In that occasion the third applicant held up a
banner with a popular quote from a famous Soviet-era actress: ‘Homosexuality is
not a perversion. Field hockey and ice ballet are.’ (§ 8- 18)
They
were each found guilty of the administrative offence of ‘public activities
aimed at the promotion of homosexuality among minors’ (§ 7); the Constitutional
Court of Russian Federation declared inadmissible the complaints brought by the
applicants and, in 2014, it considered the introduction of administrative
liability for the promotion of non-traditional sexual relations among minors
as, inter alia, necessary ‘to prevent their attention
being increasingly focused on issues concerning sexual relations, which are
capable, in unfavourable circumstances, of deforming significantly the child’s
understanding of such constitutional values as the family, motherhood,
fatherhood and childhood, and adversely affecting not only his or her
psychological state and development, but also his or her social adaptation.’ (§
25)
The
applicants complained about the existence of the ban on public statements
concerning the identity, rights and social status of sexual minorities, under
Article 10, and they complained about the discriminatory nature of that ban,
under Article 14 taken in conjunction with Article 10.
The Court’s reasoning
The
Court framed the case as related to ‘the very existence’ of a legislative ban
on promotion of homosexuality or non-traditional sexual relations among minors
(§ 61) and it focused on ‘the necessity of the impugned laws as general
measures’ (§ 64). In particular, the Court extensively discussed whether such
ban could be considered necessary and legitimate in a democratic society for
the protection of health and morals and the rights of others:
Justification
on the grounds of protection of morals
The
Court denied that the social acceptance of homosexuality is incompatible with
maintaining family values as the foundation of society. First, it reiterated
that under the Convention it is ‘incumbent’ on the State to take into account
developments in society and to acknowledge that there is not just one way or
one choice when it comes to leading one’s family or private life (§ 67). Secondly, the Court denied that gay men and
lesbians might in any way endanger ‘family values’ and it remarked that ‘the
steady flow of applications’ (ibid) to the Court from gay men and lesbians who
wish to have access to the institutions of marriage, adoption and parenthood
demonstrate that homosexuals share family values and do not threaten them. Thirdly,
and relatedly, the Court took note that the majority of Russians allegedly disapprove
of homosexuality and resent any display of same-sex relations (§ 70), but it
reiterated that ‘it would be incompatible with the underlying values of the
Convention if the exercise of Convention rights by a minority group were made
conditional on its being accepted by the majority’ (ibid) and, crucially, it held:
the legislation at hand is an example of
such predisposed bias, unambiguously highlighted by its domestic interpretation
and enforcement, and embodied in formulas such as “to create a distorted image
of the social equivalence of traditional and non-traditional sexual
relationships” (…) and references to the potential dangers of “creating a
distorted impression of the social equivalence of traditional and
non-traditional marital relations” (…). Even more unacceptable are the attempts
to draw parallels between homosexuality and paedophilia. (§ 69)
Justification
on the grounds of protection of health
The Russian government had also argued that the
promotion of same-sex relationships and homosexual behaviour had to be banned
on the grounds that, compared to the traditional family, ‘same-sex relations
were associated with greater health risks, in particular that of contracting
HIV, and that they impeded population growth’ (§ 49). The Court considered
‘improbable’ that a restriction on freedom of expression concerning LGBT issues
would be conducive to a reduction of health risks (§ 72) and, most importantly,
it highlighted that ‘disseminating knowledge on sex and gender identity issues
and raising awareness of any associated risks and of methods of protecting
oneself against those risks, presented objectively and scientifically, would be
an indispensable part of a disease-prevention campaign and of a general
public-health policy’ (§ 72). The Court also noted that population-growth
depends upon a ‘multitude of factors’, related to socio-economic condition and
not to the promotion of ‘non-traditional’ sexual models (§ 73). Therefore, the
Court concluded that the government had not adduced any relevant justification
on the grounds of protection of health.
Justification
on the grounds of protection of the rights of others
The government’s third line of argument contended
that minors had to be shielded from information which could convey a positive
image of homosexuality, as a precaution against their conversion to a
‘homosexual lifestyle’ which would be detrimental to their development, make
them vulnerable to abuse and result in contraposition with the educational
choices of the vast majority of Russian parents. First, the Court commented that the vagueness of the terminology adopted
allowed framing as ‘homosexual propaganda’ any public actions that did not
depict homosexuality in negative terms. As the Court noted, indeed, ‘the
absence of a negative connotation may in itself be perceived as conveying a
positive attitude’ (§ 75) and the ‘incidental or potential sighting by a minor’
sufficed to outlaw ‘promotion’ in any venue (ibid). Secondly, the Court noted
that the Government had failed to explain why they considered that minors were
more vulnerable to abuse in the context of homosexual relationships than in
heterosexual ones and it reiterated that in absence of evidence such an
assumption amounted to a manifestation of predisposed bias (§ 79). Thirdly, and
relatedly, the Court considered that ‘nothing on their banners could be
interpreted as a proposal to provide tuition on gender issues’ (§ 80) and it
also emphasized that ‘in sensitive matters such as public discussion of sex
education, where parental views, educational policies and the right of third
parties to freedom of expression must be balanced, the authorities have no
choice but to resort to the criteria of objectivity, pluralism, scientific
accuracy and, ultimately, the usefulness of a particular type of information to
the young audience’ (§82). The Court recognised that an educational environment
opened to diversity, equality and tolerance could only be conducive to social
cohesion and it would give practical expression to the Committee of Ministers’
Recommendation Rec(2010)5 which encourages ‘safeguarding the right of children
and youth to education in safe environment, free from violence, bullying,
social exclusion or other forms of discriminatory and degrading treatment
related to sexual orientation or gender identity [as well as] providing
objective information with respect to sexual orientation and gender identity,
for instance in school curricula and educational materials’ (ibid).
Conclusion
In the light of the above considerations, the Court
concluded that ‘by adopting such laws the authorities reinforce stigma and
prejudice and encourage homophobia, which is incompatible with the notions of
equality, pluralism and tolerance inherent in a democratic society.’ (§ 83)
Moreover,
since the ban applied only to non-traditional sexual relationships, the Court
considered it as stating ‘the inferiority of same-sex relationships compared with
opposite-sex relationships’ (§ 90) and, hence, as embodying ‘a predisposed bias
on the part of the heterosexual majority against the homosexual minority’ (§ 91).
On this basis, the Court found a violation of Article 10, alone and in
conjunction with Article 14.
It could be argued that this judgment was quite foreseeable, since different
bodies of the Council of Europe had already expressed criticism and concern
about the laws affecting gay men and lesbians in the Russian Federation.
Nevertheless, today the Court has eminently reiterated that sexual orientation
discrimination is incompatible with the Convention. It is to be hoped that this
judgment will discourage other countries from adopting similar discriminatory laws and that it will force the Russian Federation to better ensure the rights
and freedoms of gay men and lesbians throughout its jurisdiction.
