A seven-member chamber of the European Court of Human Rights in Strasbourg issued a judgment on June 20 in the case of Bayev & Others v. Russia, Applications nos. 67667/09 and 2 others, holding that local and national laws in Russia making it an administrative offense for somebody to “promote homosexuality among minors” or to promote “non-traditional sexual relations” violates the free speech and equality provisions of the European Convention on Human Rights. The Parliament of the Russian Federation ratified the Convention in 1998, during the period of liberalization in that country, but in 2015 the Parliament approved a draft law endorsed by President Vladimir Putin authorizing Russia to ignore rulings of the European Court of Human Rights when they were inconsistent with the Russian Constitution. Despite their proclaimed purpose of protecting minors, the laws have been aggressively enforced to prevent public demonstrations in support of LGBT rights.
The Bayev case consolidated applications to the court by three Russian gay rights advocates, Nikolay Bayev, Aleksey Kiselev, and Nikolay Alekseyev, each of whom had been prosecuted under either the local laws or the federal law, all of which made it an administrative offense, punishable by a fine, to “promote homosexuality” or “non-traditional relationships” to minors. These applicants had demonstrated with banners asserting the normality of homosexuality, in two cases in places where children were likely to see them (schools, libraries) and in one case in front of a government building. Each of them was fined, and their appeals were rejected by the constitutional courts in Russia.
In defending the laws, the Russian government insisted that they were within its authority, and consistent with the European Convention, to protect the morals of youth and the demographic and health concerns of the nation by prohibiting such “promotion.” The government pointed to the severe demographic challenge faced by Russia, which has suffered a declining population, as well as the risks of HIV transmission through homosexual activity and the need to channel Russian youth into traditional heterosexual family relationships to produce more children.
The applicants pointed to the protection for freedom of expression and equality under Articles 10 and 14 of the Convention, contending that the government had not provided adequate justification for censoring the applicants’ messages.
The seven-member chamber, whose judgment will be appealed by Russia to a larger “Grand Chamber” of the court, included judges from Sweden, Spain, Switzerland, Slovakia, Cyprus and the Netherlands, as well as a Russian judge, who was the lone dissenter from the judgment.
The court thoroughly rejected the Russian government’s argument in support of the laws. The government admitted that the laws restricted freedom of expression, but claimed that the restriction fell within the “margin of appreciation” for justified restrictions. While noting the government’s argument that the “margin of appreciation” is wide “where the subject matter may be linked to sensitive moral or ethical issues” as to which there is no European consensus, in this case, the court said, “there is a clear European consensus about the recognition of individuals’ right to openly identify themselves as gay, lesbian or any other sexual minority, and to promote their own rights and freedoms,” citing to its earlier judgment in a case brought by Mr. Alexeyev in opposition to the earliest local enactment of a similar law.
Seeking to justify its position, the government alleged the “incompatibility between maintaining family values as the foundation of society and acknowledging the social acceptance of homosexuality,” but the court was not convinced. “The Court sees no reason to consider these elements as incompatible, especially in view of the growing general tendency to include relationships between same-sex couples within the concept of ‘family life’ and the acknowledgement of the need for their legal recognition and protection.” After noting the strong trend in Europe towards recognition for same-sex relationships, and suggesting that the court’s jurisprudence had to move with the times, the court also noted the strong desire of same-sex couples to form families and raise children. Furthermore, said the court, “The Government failed to demonstrate how freedom of expression on LGBT issues would devalue or otherwise adversely affect actual and existing ‘traditional families’ or would compromise their future.”
“The Court has consistently declined to endorse policies and decisions which embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority,” said the court. “It held that these negative attitudes, references to traditions or general assumptions in a particular country cannot of themselves be considered by the Court to amount to sufficient justification for the differential treatment, any more than similar negative attitudes towards those of a different race, origin or color.” The court found that the challenged Russian laws are “an example of such predisposed bias,” and rejected the idea that because the majority of Russians strongly oppose homosexuality, that would justify the government in abridging the freedom of expression of gay people seeking to protect their rights. Thus, the Court rejected the government’s argument that “regulating public debate on LGBT issues may be justified on the grounds of the protection of morals.”
The court also rejected the government’s argument that the laws could be justified as public health measures or as a means to address the country’s demographic problems. In fact, the court pointed out, ignorance about homosexuality would be counterproductive as a public health measure, and there was no evidence that suppressing all discussion of homosexuality that could come to the attention of minors would contribute to growth of the Russian population. “Population growth depends on a multitude of conditions, economic prosperity, social-security rights and accessibility of childcare being the most obvious factors among those susceptible to State influence,” wrote the court. “Suppression of information about same-sex relationships is not a method by which a negative demographic trend may be reversed. Moreover, a hypothetical general benefit would in any event have to be weighed against the concrete rights of LGBT individuals who are adversely affected by the impugned restrictions. It is sufficient to observe that social approval of heterosexual couples is not conditional on their intention or ability to have children.”
The court also found that the laws could not be justified as a measure to “protect the rights of others,” such as minors themselves or their parents. The laws did not prevent parents from instructing their children or promoting traditional heterosexual relationships to their children. Furthermore, the laws as interpreted by the Russian courts and applied to the applicants in these cases were clearly both vague and overly broad, extending to activities that were hardly likely to undermine parental authority or to harm children.
The court found that the biased views underlying the laws also supported the applicants’ arguments that the laws violate Article 14 of the Covenant, which guarantees equality.
As a remedy, the court ordered that the Russian government refund to the applicants the fines they had been ordered to pay, and also awarded them monetary damages to compensate for expenses incurred in connection with this litigation. Also, wrote the court, “it considers that the applicants suffered stress and anxiety as a result of the application of the discriminatory legal provisions against them. It also notes that the impugned legal provisions have not been repealed and remain in force, and thus the effects of the harm already sustained by the applicants have not been mitigated,” so it awarded additional damages as compensation. The amounts awarded were relatively trivial.
The Russian judge on the panel, Dmitry Dedov, submitted a dissenting opinion that channeled the arguments of the Russian government, particularly as they were articulated by the constitutional court in rejecting the appeals in these cases.
The government contended that the challenged measures are non-discriminatory, do not impose criminal sanctions for homosexual conduct and do not single out homosexuals for suppression of their expression, but rather focus on socially harmful messages that everybody, whether gay or straight, are prohibited from sending to minors. Dedov contended that the court erred by focusing on a “conflict of rights” rather than on the government’s “legitimate aim” in promoting the morals and health of minors and Russian society. He contended that what the local governments and the Federal government had done was well within their appropriate role to promote social welfare, and particularly the well-being of vulnerable minors, and that the court was mistaken in treating this as a case about discrimination.
“Needless to say,” he wrote, “sexual identification, as well as sexual orientation, is a very intimate process, albeit influenced by social life and social relations. The international instruments, including the CRC, recognize that children should primarily consult their parents or close members of the family, rather than obtaining information about sex from the applicants’ posters in the street.” He argued that it was for the government to determine how to educate minors about their social roles, contending that “it is commonly recognized that sex education is a very sensitive area where the dissemination of information should be carried out very carefully.”
The Russian news agency, Tass, quickly reported that the Russian Justice Ministry would appeal the decision and contest the remedy, which totaled about 49,000 euros. The statement from the Ministry reiterated Judge Dedov’s main point, arguing that “the provisions of a number of regional laws banning LGBT propaganda among minors do not contradict international practices and are aimed exclusively at protection of children’s morality and health.”
The full text of the opinion in English is available on the court’s website, as well as a press release summarizing the decision.