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 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).
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.