In a recent judgment, the European Court of Human Rights (ECtHR) found Russia’s ‘gay propaganda law’ to breach Article 10 and 14 of the European Convention on Human Rights.
In 2013, the Russian Duma passed the now notorious ‘gay propaganda law’, banning any activity which promotes ‘non-traditional sexual relationships’. Ostensibly, the purpose of this law is to protect the welfare of children but in reality this law is used to crack down on freedom of expression and further ostracize the LGBT community. It was this controversial law which was scrutinised by the ECtHR in one of its latest judgments.
The applicants in Bayev were three gay rights activists who had all fallen foul of this gay propaganda law. The applicants argued that this law violated their right to freedom of expression (Article 10 ECHR) in conjunction with Article 14 ECHR (discrimination). By contrast, the government submitted that this law was justified under Article 10 ECHR (a qualified right) on several grounds, inter alia, the protection of public morals, public health and the rights of others (children).
The Majority Judgment
The ECtHR held by a majority of 6-1 that the law against the promotion of ‘non-traditional sexual relationships’ violated Article 10 ECHR (freedom of expression) in conjunction with Article 14 ECHR (discrimination), offering robust protection of LGBT rights in Russia.
First, the majority in Bayev did not hesitate to find that there had been an interference with the applicants’ rights under Article 10 ECHR, given that all three applicants had been fined for promoting ‘non-traditional sexual relationships’.
The ECtHR then went on to consider whether this interference was justified under Article 10 ECHR. Unfortunately, the majority did not deem it necessary to first consider the ‘quality’ of this law itself. Under the ECHR any interference with a qualified right must be ‘prescribed by law’. In its previous jurisprudence the ECtHR has found some domestic laws to be so vague or unforeseeable in their application that they fail to meet this requirement. Given its vagueness, if properly scrutinised, it is likely that the ‘gay propaganda law’ would also have failed to meet this requirement.
Instead, the ECtHR proceeded to consider whether this law was justified under Article 10(2) ECHR. The majority held that that ‘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’. Accordingly, Russia was granted a narrow margin of appreciation (discretion afforded to States) in legislating to limit these rights. The majority dismissed Russia’s submissions that this law was justified on the grounds of the protection of public morals finding ‘no reason to consider these elements [family values vs. social acceptance of homosexuality] as incompatible’. The ECtHR was particularly critical of attempts to draw a parallel between homosexuality and paedophilia.
Nor, did the majority find this law justified for the protection of public health. In fact, it was held that preventing the dissemination of knowledge on sex and gender identity issues and of any related risks, would be likely to hinder efforts to protect public health.
Thirdly, Russia had sought to justify this law for the protection of the rights of others (children), preventing them from being converted to a ‘homosexual lifestyle’. The majority were equally critically of this submission, finding no evidentiary basis for the notion that sexual orientation/ identity is susceptible to change under external influence. In delivering sex education, States must abide inter alia by the principles of pluralism, objectivity and scientific accuracy.
Overall, the majority found that the applicants’ rights under Article 10 ECHR had been violated by this ‘gay propaganda law’. Importantly, the ECtHR went even further, holding that this law also violated the applicants’ rights under Article 14 ECHR (prohibition of discrimination) in that the law ‘embodied a predisposed bias on the part of the heterosexual majority against the homosexual minority and that the Government have not offered convincing and weighty reasons justifying the difference in treatment’.
Dissenting Judgment of Judge Dedov
In contrast to the majority in Bayev, Judge Dedov sought to justify this ‘gay propaganda law’, heavily relying on the submissions made by the Russian government. Most shocking (and bizarrely) of all was Judge Dedov’s attempt to link homosexuality with paedophilia. A particularly scathing attack on this dissenting judgment can be found here.
Overall, in Bayev, the ECtHR has provided a powerful judgment, upholding the protection of LGBT rights. Whether Russia will take heed of this criticism and repeal the controversial ‘gay propaganda law’, remains to be seen.