On 20 June 2017, the third Chamber of the European Court of Human Rights (“ECtHR”) ruled in the case of Bayev & Others v Russia that the Russian state had violated the European Convention on Human Rights (“Convention”) via laws prohibiting the promotion of homosexuality among minors. This, the first of two posts, discusses the background to, and legal arguments in the case. A second post discussing the wider legal and political implications will follow shortly.
Facts and decision
Each of the applicants was a gay rights activist convicted of the administrative offence of “public activities aimed at the promotion of homosexuality among minors”, contrary to various regional Russian laws. Aspects of those laws were challenged before the Russian Constitutional Court. That Court rejected the complaints, and so the applicants took their case to the ultimate arbiter of Convention matters – the ECtHR.
The ECtHR upheld the applicants’ complaints, holding that the legislation unlawfully interfered in their rights to freedom of expression under article 10 of the Convention, both taken in isolation and when read together with article 14, which prohibits discrimination in the enjoyment of Convention rights. In so doing, it roundly rejected the Russian Government’s arguments, including its contentions that:
(a) the applicants’ activities had “encroached on the moral and spiritual development of children”;
(b) the applicants had placed psychological pressure on children and intruded in their private lives by deploying phrases such as “homosexuality is natural”;
(c) the applicants had intruded into the sphere of parental responsibility in respect of the moral and intellectual development of children;
(d) information on homosexuality “promoted the denial of traditional family values”;
(e) compared with the “traditional family”, same-sex relations were associated with greater health risks, including HIV; and
(f) there were analogies to be drawn between this case and the ECtHR’s previous judgments regarding the protection of minors against paedophilia and incest.
The most notable aspects of the ECtHR’s majority judgment (with only the judge from Russia dissenting on the result) are as follows:
(a) There is a clear European consensus on an individual’s right to identify as homosexual.
(b) There is no reason to consider incompatible the maintenance of “family values” and the social acceptance of homosexuality. Indeed, the ECtHR noted the link between many sexual minorities and the institution of marriage.
(c) Policies based on a pre-disposition of bias towards gay people cannot of themselves justify differential treatment. The legislation in this case was an example of such bias and was unjustifiable.
(d) Russia’s attempt to draw a distinction between homosexuality and paedophilia was “unacceptable”.
(e) It was improbable that the ban would be conducive to a reduction in health risks. On the contrary, the dissemination of knowledge on sex and gender identity, and raising awareness of associated risks would be of benefit to general public health policy.
(f) The Russian Government had failed to explain, let alone evidence, that sexual orientation is susceptible to change under external influence.
(g) As to the alleged intrusion in the field of education and parental choices, the character of the applicants’ demonstrations were not such that they had sought to interact with, or give tuition to, minors. Nor did they advocate any kind of sexual behaviour. Nothing they had done diminished the rights of parents to enlighten or advise their children, and to the extent that minors witnessed the campaign, this could only be conducive to social cohesion.
(h) By adopting the laws in question, “the authorities [had reinforced] stigma and prejudice and [encouraged] homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society.”
This is a robust and most welcome judgment. The ECtHR has affirmed in the most emphatic terms that laws that seek to suppress messaging regarding homosexuality have no place within the Convention system.
But the real question is this: What will the practical effect of the judgment be in Russia and more widely across the Council of Europe (the body that oversees the Convention states)? Those are complex issues that will be discussed in the second part of this post. In the meantime, those who value tolerance and openness will celebrate this judgment, albeit with one eye on the inevitable appeal to the Grand Chamber of the ECtHR (to which judgments from any Chamber of the ECtHR may be appealed), which is likely to have the final say on this matter (that is, at least outside Russia).