The European Court of Human Rights (ECHR) ruled Wednesday that the domestic courts of Russia had violated a transgender mother’s parental rights by depriving her of any contact with her children due to her gender identity.
The applicant A.M., whose gender was registered as “male” at birth, dissolved her seven-year marriage with Ms N in June 2015. The spouses agreed that the children would stay with Ms N with the applicant paying a monthly allowance to the children. Later, the applicant’s legal transition from the male to the female gender was officially recognized by the Lyublinskiy District Court of Moscow. The applicant visited the children regularly until December 2016, and, during these visits, she presented herself as male and wore male clothes, because Ms N would have objected to her visits otherwise.
From December 2016 onwards, Ms N started refusing the applicant’s visits, and, in January 2017, she also initiated proceedings to restrict the applicant’s parental rights on grounds that the applicant’s transition from male to female gender had caused “irreparable harm” to the children’s mental health. The district and appeals courts in Russia upheld the same and ruled that the restriction was reasonable for preventing a “negative impact on [the children’s] mental health and psychological development.”
The ECHR ruled that the domestic court’s decisions violated the applicant’s right to respect for her family life and right against discrimination under Articles 8 and 14 of the European Convention of Human Rights. The domestic courts applied the “most restrictive measure possible” which contradict international law materials such as the UN Convention on the Rights of the Child that require children to be kept together with their parents and in case of separation, to maintain direct contact between them on a regular basis.
The ECHR also held that the applicant’s gender identity impacted the assessment of her claim and was decisive in the decisions restricting her contact with her children. The applicant was thus treated differently from other parents seeking contact with estranged children, but whose gender identity matches the sex assigned at birth.
The ECHR however refused to consider the applicant’s claims brought on behalf of her children’s right to family life on grounds that only the custodial parent can bring such claims. It has awarded A.M. 9,800 euros in damages and expenses.