JURIST Guest Columnist Paul Johnson, Senior Lecturer of Sociology at the University of Surrey, says that the latest ban by Russian authorities on the promotion of homosexuality to minors is only the most recent violation of the European Court of Human Rights ruling on the subject...
On November 16, 2011, the Legislative Assembly of St. Petersburg overwhelmingly endorsed legislation that proposes to prohibit "public actions aimed at [the] propaganda of pederasty, lesbianism, bisexuality, and transgenderism among minors." If passed at a third reading, the law would effectively ban any public expression of homosexuality and outlaw the public association and assembly of sexual minorities. It is proposed that those in breach of the law will be subject to fines ranging from 3,000 to 50,000 rubles (approximately $100 to $1,600). St. Petersburg is the latest region of the Russian Federation to introduce laws ostensibly designed to suppress "gay pride" events. The Ryazan Oblast passed similar legislation in 2006 and this was followed more recently in the Arkhangelsk Oblast where, on November 17, 2011, the Regional Assembly passed a law that prohibits the "promotion of homosexuality among minors." Following the initial success of the legislation in the St. Petersburg Assembly, the Moscow City Duma is reportedly planning to introduce comparable legislation.
Whilst many readers in Western European and North American societies will find the development of this legislation both arcane and archaic, it expresses an entrenched hostility in Russia to the types of gay pride events that have become common elsewhere in the world. The legislation that is appearing across the regions of the Russian Federation, and which has the potential to become established in federal law, is anchored in claims that "homosexual propaganda" is a dangerous threat to children and the family. Until recently, similar claims underwrote legislation in the UK that prohibited local authorities from promoting homosexuality and specified that no school could teach that homosexuality was acceptable as a "pretended family relationship" (section 28 of the Local Government Act 1988 of England and Wales, repealed by the Local Government Act 2003). Such arguments continue to be used to legitimate a range of anti-gay laws around the world.
For example, on July 14, 2009, the Lithuanian Parliament amended the Law on the Protection of Minors against the Detrimental Effect of Public Information [PDF] to prohibit any public information "whereby homosexual, bisexual or polygamous relations are promoted" (Article 4.14) and "family relations are distorted, its values are scorned" (Article 4.15). The law was vetoed by the president and amended before its commencement, but the most recent version prohibits any public information "which expresses contempt for family values, encourages the concept of entry into a marriage and creation of a family other than stipulated in the Constitution of the Republic of Lithuania and the Civil Code of the Republic of Lithuania" (Article 4.16). The Civil Code of the Republic of Lithuania defines marriage as "a voluntary agreement between a man and a woman" (Article 3.7).
The Ryazan Oblast law, which prohibits "Public actions aimed at the promotion of homosexuality (sodomy and lesbianism) among minors," has been upheld by the Constitutional Court of the Russian Federation. In January 2010, the Constitutional Court dismissed a complaint that the law violated a number of provisions of the Russian Constitution, in particular Article 29 (right to freedom of thought and speech), Article 19 (ban on discrimination) and Article 55 (allowance to limit citizen's constitutional rights only by federal law). The Constitutional Court held that
the ban of such propaganda, as purposeful and uncontrolled activity connected to the dissemination of information which can harm the health, morals and spiritual development, including forming of distorted perceptions about social equivalence of traditional and nontraditional marriage relations, among persons, who are deprived, due to their age, of the ability to critically evaluate such information, cannot be considered as breaching the constitutional rights of citizens.What is astonishing about the recent ratcheting up of these regional anti-gay provisions in Russia is that they are in direct defiance of the European Court of Human Rights (ECHR), which has explicitly admonished Russian public authorities for prohibiting public association and assembly on the grounds of sexual orientation. In Alekseyev v. Russia, the ECHR upheld a complaint from Alekseyev, a gay rights activist, that the repeated refusals by Moscow authorities for permission to hold a gay pride event violated his rights under Articles 11 (freedom of assembly and association), 13 (effective remedy), and 14 (prohibition of discrimination) of the European Convention on Human Rights.
In respect to Article 11, Alekseyev complained that bans on the public events he had attempted to organize in 2006, 2007 and 2008 had not been in accordance with the law, had not pursued any legitimate aim and had not been necessary in a democratic society. The Russian government claimed that the public authorities had acted lawfully and within their margin of appreciation when deciding to prohibit the events. The government stated that the ban pursued three legitimate aims: the protection of public safety and the prevention of disorder, the protection of morals, and the protection of the rights and freedoms of others. These aims were legitimate, the government argued, in light of statements made by several religious groups which suggested that the proposed assemblies would cause moral offence and raise significant safety issues. They referred to a number of statements, including those from the Union of Orthodox Citizens which advised the mayor of their intention to conduct a mass protest in response to any Pride march in Moscow; the Orthodox Church which objected to a gay parade on the grounds that it was propaganda promoting sin; the Supreme Mufti for Russia who promised that Muslims and other "normal people" in Russia would demonstrate against any Pride march; and the head of the Muslim authority of Nizhniy Novgorod who argued that "as a matter of necessity, homosexuals must be stoned to death." The ECHR held that "the ban on the events organized by the applicant did not correspond to a pressing social need and was thus not necessary in a democratic society" and unanimously found in favor of Alekseyev.
In respect to Article 14, Alekseyev complained that, despite the absence of any explicit reference by public authorities to sexual orientation as the grounds for the ban, the main reason for their refusal to grant permission was an official moral disapproval of homosexuality. The basis for the decision, Alekseyev contended, was the mayor of Moscow's disapproval of homosexuality. It had been quoted in the press that the mayor considered that homosexuality was unnatural and that most Moscow residents supported the ban. In light of the antagonistic social relations between homosexuals and religious groups, the government argued that it was not discriminatory, but necessary, for public authorities to place restrictions on the exercise of Article 11 rights. The Court concluded that "the ban imposed on the events organized by the applicant was the authorities' disapproval of demonstrations which they considered to promote homosexuality" and that, as such, "the applicant suffered discrimination on the grounds of his sexual orientation and that of other participants in the proposed events."
The ECHR judgment in Alekseyev is important for a number of reasons, not least because it explicitly establishes that sexual minorities have a human right to public assembly and association. It gives judicial effect to Recommendation CM/Rec(2010)5 of the Committee of Ministers of the Council of Europe, which states that European nations "should take appropriate measures at national, regional and local levels to ensure that the right to freedom of peaceful assembly, as enshrined in Article 11 of the Convention, can be effectively enjoyed, without discrimination on grounds of sexual orientation or gender identity" and, furthermore, that they "should take appropriate measures to prevent restrictions on the effective enjoyment of the rights to freedom of expression and peaceful assembly resulting from the abuse of legal or administrative provisions, for example on grounds of public health, public morality and public order." The Committee of Ministers of the Council of Europe currently have the execution of the judgment in Alekseyev under "enhanced supervision" and it is to be hoped that, given the ongoing blatant defiance of the ECHR decision by the Russian authorities, it will exercise its authority to compel the Russian Federation to remove anti-gay provisions that violate the human rights of homosexuals.
Paul Johnson is a Senior Lecturer in Sociology at the University of Surrey in the UK. His current research focuses on the relationship between law, human rights, sexual orientation and intimacy. He is completing the monograph "Homosexuality and the European Court of Human Rights," to be published by Routledge in 2012, and is the author of Homosexuality, Freedom of Assembly and the Margin of Appreciation Doctrine of the European Court of Human Rights: Alekseyev v. Russia.
Suggested citation: Paul Johnson, Russian Ban on Homosexual Propaganda Violates Human Rights, JURIST - Hotline, Dec. 1, 2011, http://jurist.org/hotline/2011/11/paul-johnson-russia-lgbt.php.
This article was prepared for publication by Leah Kathryn Sell, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to her at firstname.lastname@example.org