Children's book restricted in Lithuania for showing gay relationships in positive light goes to European Court of Human Rights
The Second Section of the European Court of Human Rights has communicated the case of Macatė v Lithuania. The case concerns restrictions placed upon the distribution of a book for children by Neringa Dangvydė Macatė on the grounds that, since it depicted same-sex couples who got married and lived happily, it was detrimental to minors.
The facts
Ms Macatė was a writer and specialist in children’s literature, and was openly gay.
In 2013 the Lithuanian University of Education published Ms Macatė's book “Amber Heart”, a collection of original fairy tales. They were based on traditional fairy tale motifs and aimed at fostering social inclusion of various marginalised groups, including ethnic minorities and persons with disabilities. Out of the six fairy tales, two depicted love between people of the same sex.
In 2014 the university stopped the distribution of the book, on the grounds that it might have a negative effect on minors because of its depiction of same-sex family relationships. In 2015 it renewed the distribution, but the book was marked with a warning that it “might have a negative effect on persons below the age of fourteen”.
Ms Macatė instituted civil proceedings against the university, stating that it had restricted her freedom of expression on discriminatory grounds, but her claim was dismissed. The courts held that, as provided under Lithuanian law and as understood by the majority of the Lithuanian society, a family was created by marriage of persons of different sexes, and the law considered information which promoted different concepts of marriage and family to be harmful to minors.
Ms Macatė complains under Article 10 of the Convention, taken alone and together with Article 14, that the publication and distribution of her book was restricted because of its positive depiction of same-sex relationships.
Questions to the Parties
The Court has asked the Parties the following questions:
1. Has there been an interference with the applicant’s freedom of expression within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?
2. Did the restrictions on the publication and distribution of the applicant’s book amount to discrimination on the grounds of sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 10?
Brief comment
This application has a high chance of success, in light of the Court's recent case law on the suppression of public discussion of same-sex relationships to "protect" minors.
In Alekseyev v Russia the Court held that "[t]here is no scientific evidence or sociological data at the Court's disposal suggesting that the mere mention of homosexuality, or open public debate about sexual minorities' social status, would adversely affect children or 'vulnerable adults'. On the contrary, it is only through fair and public debate that society may address such complex issues..." (2010, § 86).
Moreover, in Bayev v Russia the Court held that exposing minors to "ideas of diversity, equality and tolerance" regarding sexual orientation, and "the adoption of these views", could "only be conducive to social cohesion". The Court also recognized that "the protection of children from homophobia gives 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'" (2017, § 82).
In 2013 the Lithuanian University of Education published Ms Macatė's book “Amber Heart”, a collection of original fairy tales. They were based on traditional fairy tale motifs and aimed at fostering social inclusion of various marginalised groups, including ethnic minorities and persons with disabilities. Out of the six fairy tales, two depicted love between people of the same sex.
In 2014 the university stopped the distribution of the book, on the grounds that it might have a negative effect on minors because of its depiction of same-sex family relationships. In 2015 it renewed the distribution, but the book was marked with a warning that it “might have a negative effect on persons below the age of fourteen”.
Ms Macatė instituted civil proceedings against the university, stating that it had restricted her freedom of expression on discriminatory grounds, but her claim was dismissed. The courts held that, as provided under Lithuanian law and as understood by the majority of the Lithuanian society, a family was created by marriage of persons of different sexes, and the law considered information which promoted different concepts of marriage and family to be harmful to minors.
Ms Macatė complains under Article 10 of the Convention, taken alone and together with Article 14, that the publication and distribution of her book was restricted because of its positive depiction of same-sex relationships.
Questions to the Parties
The Court has asked the Parties the following questions:
1. Has there been an interference with the applicant’s freedom of expression within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?
2. Did the restrictions on the publication and distribution of the applicant’s book amount to discrimination on the grounds of sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 10?
Brief comment
This application has a high chance of success, in light of the Court's recent case law on the suppression of public discussion of same-sex relationships to "protect" minors.
In Alekseyev v Russia the Court held that "[t]here is no scientific evidence or sociological data at the Court's disposal suggesting that the mere mention of homosexuality, or open public debate about sexual minorities' social status, would adversely affect children or 'vulnerable adults'. On the contrary, it is only through fair and public debate that society may address such complex issues..." (2010, § 86).
Moreover, in Bayev v Russia the Court held that exposing minors to "ideas of diversity, equality and tolerance" regarding sexual orientation, and "the adoption of these views", could "only be conducive to social cohesion". The Court also recognized that "the protection of children from homophobia gives 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'" (2017, § 82).
Whilst it is the case that, on the subject of same-sex marriage, the Court's position remains that "the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State" (Schalk and Kopf v Austria, 2010, § 61) it has also been clear that "conferring substantive rights on homosexual persons is fundamentally different from recognising their right to campaign for such rights" (Alekseyev v Russia, 2010, § 84).
Given the Court's recent case law it seems likely that the regulation of "Amber Heart" will be held to be an interference with the right to freedom of expression of its author that, even if lawful, is unnecessary in a democratic society and, as a such, a violation of Article 10 of the Convention (and Article 14 of the Convention since the unnecessary interference was based on sexual orientation).
Given the Court's recent case law it seems likely that the regulation of "Amber Heart" will be held to be an interference with the right to freedom of expression of its author that, even if lawful, is unnecessary in a democratic society and, as a such, a violation of Article 10 of the Convention (and Article 14 of the Convention since the unnecessary interference was based on sexual orientation).
However, since the application was lodged, the applicant, Ms Macatė, has sadly died. Whether the Court continues to examine the application will depend upon a number of factors, not least whether there is a next of kin or close family member expressing the wish to pursue the proceedings before the Court or, in the absence of this, the Court finds that respect for human rights as defined in the Convention requires a continuation of the examination of the case (see, for example, Karner v Austria, 2003, §§ 20-28).
Neringa Dangvydė Macatė
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