Tuesday, 20 June 2017

Russian "homosexual propaganda" laws are a violation of the ECHR

Many thanks to Silvia Falcetta, for the following very insightful analysis:

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.

Monday, 22 May 2017

"Are gay rights human rights?" - text of a "Pint of Science" talk

On the 16th of May 2017, I was invited to give a "Pint of Science" talk on the theme of "Sexuality in Society". My co-speakers were Prof Stevi Jackson, and Alix Fox. The event took place in a pub in York, and the theme of my talk was "are gay rights human rights?"

The text of the talk is available here:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2971762

 

Wednesday, 17 May 2017

IDAHOT 2017: COME OUT FOR HUMAN RIGHTS!

Many thanks to Silvia Falcetta, for the following:

To mark the International Day Against Homophobia, Transphobia and Biphobia, IDAHOT, the Council of Europe has launched a webpage – under the slogan COME OUT FOR HUMAN RIGHTS - which gives an interactive overview of the legal and social conditions experienced by sexual minorities throughout the 47 Countries of the CoE.

Thanks to a user-friendly layout and clear keywords, it is easily accessible to the general public and it explains the origins and the importance of commemorating, every 17 May, the 1990 decision of the World Health Organisation to remove homosexuality from the list of mental disorders. Under each thematic section, data and animations highlight the rates of discrimination and the incidence of hatred violence on LGBTI people, showing how prejudice still affects the everyday life of gay men, lesbians and transgender persons across the CoE. Further, detailed Reports and short interviews to Commissioners and Parliamentary members involved in specific projects illustrate the actions undertaken by the CoE against homophobia and transphobia.

The message conveyed throughout this webpage is as simple as powerful: LGBT rights are not special rights and, as the Secretary General of the CoE remarked yesterday “LGBTI people have the same rights as everyone else under the European Convention on Human Rights”.

A particular praise goes to the Secretary General for directly addressing the violent crackdown on gay men in Chechnya and for his firm condemn of hatred violence and irresponsible political speech: “I am particularly concerned about the recent allegations of mass persecutions of LGBTI people in the Chechen Republic of the Russian Federation. Discrimination and violence against LGBTI people is the worst kind of populism. Using minorities as scapegoats is unfortunately a growing trend. It is dangerous to democracy and governments must do all they can to stop it. Societies based on human rights, democracy and the rule of law need strong anti-discrimination laws, which are properly applied, and policies to integrate minorities and protect their rights. We also need to tackle irresponsible political dialogue inciting people to hatred and prejudice”.

It is to be hoped that such explicit stances will encourage the CoE institutions to actively urge the Russian Federation and all CoE countries to fully comply with their obligations under human rights law. Likewise, it is to be hoped that the clear reference to the European Convention of Human Rights as the crucial legal frame to tackle homophobic and transphobic discrimination will reinforce the ECHR willingness to act as a ‘sanctuary’ for people discriminated and prosecuted on the grounds of their sexual orientation and gender identity. 

Link to COME OUT FOR HUMAN RIGTHS page: 
http://www.coe.int/en/web/human-rights-channel/idahot

Link to the Secretary General speech: 


Monday, 8 May 2017

New communicated case - Beus v Croatia

The Second Section of the European Court of Human Rights has communicated the case of Beus v Croatia, which was lodged on 27 February 2017. 

The case concerns the complaint by Mr Ante Beus that, following a homophobic attack (during which he was hit twice on the head and once on the body, resulting in haematoma and swellings on his face), that domestic authorities failed to act appropriately in dealing with the crime committed against him. 

Mr Beus complains, under Articles 3, 8 and 14 of the European Convention on Human Rights, about the lack of an appropriate procedural response of the domestic authorities to the acts of homophobic violence against him.


Thursday, 4 May 2017

Religion, marriage, and same-sex couples

I'm pleased to make available a new article, co-written with Professor Robert Vanderbeck at the University of Leeds, which explores the ways in which "space" and "words" are used to maintain differences between same-sex and opposite-sex couples in respect of "religious marriage".

Information about the article, which includes some interesting and revealing statistics, is available here:

https://www.york.ac.uk/news-and-events/news/2017/research/same-sex-couples-marriages/


Tuesday, 25 April 2017

New article on the Church of England and sexual orientation equality law

I am pleased to make available a new article, co-written with Robert Vanderbeck at the University of Leeds, called "Sexual Orientation Equality and Religious Exceptionalism in the Law of the United Kingdom: The Role of the Church of England".

The article, as its title suggests, considers the role of the Church of England in ensuring the inclusion of provisions in legislation that exempt it and other religious organisations from the legal requirement to treat people equally on the grounds of sexual orientation.

Here is the abstract:

There is a growing literature that addresses the appropriateness and merits of including exceptions in law to accommodate faith-based objections to homosexuality. However, what has rarely been considered and, as a consequence, what is generally not understood, is how such religious exceptions come to exist in law. This article provides a detailed analysis of the contribution of the Church of England to ensuring the inclusion of religious exceptions in United Kingdom legislation designed to promote equality on the grounds of sexual orientation. The article adopts a case study approach that, following the life of one piece of anti-discrimination legislation, shows the approach of the Church of England in seeking to insert and shape religious exceptions in law. The analysis contributes to broader debates about the role of the Church of England in Parliament and the extent to which the United Kingdom, as a liberal democracy, should continue to accommodate the Church’s doctrine on homosexuality in statute law.

Tuesday, 18 April 2017

New communicated case concerning gay asylum - O.S. v Switzerland

The Third Section of the European Court of Human Rights has communicated the case of O.S. v Switzerland. The case concerns a Gambian national, Mr O.S., who is approximately 33-years-old and who has been refused asylum in Switzerland.

The facts

Mr O.S. arrived in Switzerland in 2008 and applied for asylum under a false name and nationality. This request was rejected and Mr O.S.'s expulsion was ordered. Mr O.S. was subsequently convicted of an offence and served two periods in prison. Prior to his first period of imprisonment, Mr O.S. had applied again for asylum under his real name. He based his request on the fact that he is homosexual and is therefore at risk of persecution in Gambia. 

Gambia continues to enforce law relating to homosexual acts that was enacted during the British colonial period. The Gambian Criminal Code makes "carnal knowledge of any person against the order of nature" (which has been defined to include any homosexual act) an offence punishable by up to 14 years of imprisonment, or up to life imprisonment in certain "aggravated" circumstances. The Criminal Code further makes "gross indecency" between persons of the same sex an offence punishable by up to five years of imprisonment. Gambian criminal law relating to homosexual acts has been amended twice since 2005 to strengthen the prohibition of such acts. 

Mr O.S.'s second asylum request was denied.

In 2014, Mr O.S. and his same-sex partner officially registered their relationship and applied for family unification - that is, a residence permit for Mr O.S. to stay with his registered partner in Switzerland.

In 2015, the Swiss migration authorities refused Mr O.S.'s request and ordered his expulsion. They further stated that Mr O.S. had to await the outcome of any appeals outside of Switzerland. Mr O.S. appealed the refusal, and this appeal is pending before the Administrative Court.

Mr O.S. also requested an interim measure, allowing him to stay in Switzerland during the appeal proceedings. This request has been repeatedly denied. In December 2015, the Swiss Federal Supreme Court held that there was a high probability that Mr O.S.'s appeal against his expulsion would not be successful, in particular owing to his criminal conviction and his conduct during the asylum proceedings. The Court further held that:
"there were no concrete obstacles for [Mr O.S.] to return to Gambia, at least temporarily. [He] and his partner had so far only lived together for a very limited period since [he] had been imprisoned for a considerable amount of time during their relationship. Furthermore, there were no indications that the Gambian authorities were aware of [Mr O.S.'s] homosexuality or partnership. Therefore ... there was no real risk for [Mr O.S.] under Article 3 [of the Convention], when returned to Gambia."
Complaint to the Court

Mr O.S. complains under Article 3 of the Convention about his impending expulsion to Gambia. He fears that, "owing to his homosexuality, even a temporary return to Gambia would expose him to a real risk of arbitrary detention, imprisonment and torture".

Question to the Parties

The Court has asked the following question:
"In the light of [Mr O.S.'s] claims and the documents which have been submitted, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention if the expulsion order were enforced?"
Context

As I have previously written here (the last time was in January, concerning the case of M.B. v Spain) this case has to be seen in the light of the fact that the Court has never held that the deportation of a gay person to a country of origin, outside the Council of Europe, that criminalises same-sex sexual activity amounts to a violation of any aspect of the Convention. 

The Convention has been in force for nearly 64 years and the Court has contributed little (if anything) to elucidating, safeguarding and developing the human rights of people who, should they be returned by Council of Europe states to the countries they flee, are at risk of inhuman and degrading treatment and punishment, torture, and death. 

This, as I argued here, amounts to a shameful history.

The Council of Europe's approach to the issue of asylum and sexual orientation discrimination, including the case law of the Court, is summarised in my recent chapter which is available here: 

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2927098