A Sermon from the Bench: Some Thoughts on the ECtHR Judgment in Bayev and Others v Russia

On 20 June 2017, the ECtHR rendered a judgment in the Bayev and Others v Russia. The judgment brought some much needed good news for LGBT rights. Against the backdrop of persecution of gay men in Chechnya and the steady deterioration of the position of LGBT people in Russia generally, the ECtHR showed its activist colours in ruling that Russia’s so-called ‘gay propaganda’ law violates human rights. The authors enthusiastically welcome and applaud the outcome. That being said, the Bayev judgment at times seems to leave the law ‘behind’ and strays from judicial decision to sermon, in a way that may ultimately undermine the efforts of the Court to move protections forward. Of note in this regard is the wording at times employed by the Court, and its understanding of the boundaries of its competence.

The Bayev case is the result of a challenge, brought by three gay activists, against what is often referred to as Russia’s ‘gay propaganda’ law. The Code of Administrative Offences of the Russian Federation imposes fines on those promoting ‘non-traditional sexual relationships’ among children, including portraying such relationships in a positive light, creating a distorted image of the equivalence of such relationships with traditional sexual relationships, and providing information which would create in children a non-traditional sexual orientation. The three individuals who brought the case were fined for demonstrating in public areas with banners containing slogans such as ‘Homosexuality is normal’ and ‘Homosexuality is not a perversion’. After their cases were dismissed by the Russian Constitutional Court, the activists successfully challenged the laws in question on the basis of Article 10 (freedom of expression) and Article 14 (prohibition of discrimination) ECHR.

The Court’s Reasoning

At the outset, the Court outlined two reasons why Russia enjoys a narrow margin of appreciation in the present case. First, the case concerns the recognition of individuals’ right to openly identify themselves as LGBT and to promote their own rights, for which there exists a clear European consensus. Second, the case concerns facets of individuals’ existence and identity, a qualification the Court has repeatedly used to narrow the margin of appreciation.

The Court considered that the pivotal issue in this case is the very existence of the legislation banning the promotion of homosexuality or non-traditional sexual relations among minors. Hence, the Court assessed whether the impugned laws as general measures were necessary and justified on grounds of morality, public health, and the rights of others.

(i) Protection of morals

The Court held that the the restrictions on the applicants’ freedom of speech could not be justified on the grounds of protection of public morals. With regards to the Government’s assertion that the law reflects the popular disapproval of homosexuality among the Russian people, the Court affirmed that popular sentiment may only be invoked in order to extend the scope of Convention rights, not to restrict them. To allow otherwise would make the exercise of Convention rights by a minority group conditional on acceptance by the majority, rendering these rights merely theoretical.

The Court also rejected the Government’s contention that the law was necessary to uphold the moral imperative of the protection of traditional family values as the foundation of society. The Court saw no reason to consider social acceptance of homosexuality as incompatible with family values, and cited the growing tendency to include relationships between same-sex couples within the concept of ‘family life’. Instead, the Court stipulated that a State can best protect family by taking

into account developments in society and changes in the perception of social, civil-status and relational issues, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life.

The wording here is worth highlighting. The Court appears to be telling States to adopt a pluralistic approach and what that approach should look like, without truly engaging with those, both inside Russia and outside, who’s understanding of family life may be more traditional. From a consequentialist standpoint it is unclear whether this approach would encourage states to change their understanding of morality.

 (ii) Protection of health

 The justification for the restrictive measures on grounds of public health was also rejected by the Court. It was held that the Government’s assertions that same-sex relationships posed a risk to public health and the demographic situation were unsubstantiated and, in any event, could not justify restricting freedom of speech on the subject of same-sex relationships. In terms of the ‘demographic situation’, the Court alluded to the inconsistency that ‘social approval of heterosexual couples is not conditional on their intention or ability to have children’. On the issue of public health, the Court noted 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…would be an indispensable part of a disease-prevention campaign.

While applauding the Court’s efforts, one could question whether the ECtHR is competent to decide what information is or is not ‘indispensable’ to a public health campaign. It would perhaps have been sufficient to note that the Government, as the party with the burden of proof, had not adduced sufficient evidence to discharge this burden, rather than setting out the correct standard on this aspect of public health campaigns.

 (iii) Protection of the rights of others

The Government’s final argument invoked the need to protect the rights of others to justify restricting freedom of speech. It contended that the slogans of the demonstrators could have the effect of converting minors to a ‘homosexual lifestyle’, and as such, the freedom of expression of the LGBT activists touched upon the personal autonomy of minors and encroached upon the educational choices of their parents.

The Court addressed these allegations on three grounds. First, as regards the alleged forceful or underhand recruiting of minors by the LGBT community, there was held to be no evidentiary basis to suggest that ‘a minor could be enticed into a homosexual life, let alone science-based evidence that one’s sexual orientation or identity is susceptible to change under external influence’. Second, the allegations that minors were more vulnerable to abuse in the context of homosexual relationships than in heterosexual ones was deemed a manifestation of predisposed bias. The Court noted that the Russian law on criminal liability for lecherous actions against minors and the dissemination of pornography to minors are applicable irrespective of the sexual orientation of those involved. No evidence was adduced as to why stricter protections against abuse would be needed in the context of homosexual relationships. Third, the Court found the allegations that the LGBT demonstrations intruded in the field of educational policies and parental choices on sex education to be unsubstantiated, as the applicants ‘did not seek to interact with minors, …intrude into their private space, … or advocate any sexual behaviour’. The Court went to clarify that the obligation to respect parents’ religious or philosophical views does not exclude the right to be confronted with opinions that are opposed to one’s own convictions. In such areas, that touch upon different sensitive matters, the Court held that

the authorities have no choice but to resort to the criteria of objectivity, pluralism, scientific accuracy

Here once again the wording is worthy of note. The Court indeed seems to be sermonising, declaring State authorities to have ‘no choice’ in how they balance different sensitive concerns. One could say it is advocating pluralism in a rather non-pluralistic way.

Dissenting opinion of Judge Dedov

While the Russian government may not find much to its liking in the Majority opinion, it will find the dissent more palatable. The connections that Judge Dedov draws between homosexuality on the one hand, and violence towards and abuse of children on the other, are concerning, and resonate with the arguments put forward by the Government in the case. The dissent criticises the majority for approaching the issue as a non-discrimination one, rather than as a conflict between the freedom of expression of the applicants and the right to private life of children (as well as the rights of parents to educate their children as they wish). Judge Dedov argues that these rights must be balanced, although his statement that ‘the private life of children is more important than the freedom of expression of homosexuals’, suggests that this balance may be predetermined. It is notable that, despite the emphasis placed by Judge Dedov on the need to consider the rights of children under Article 8, he fails to articulate precisely how the actions of the applicants could be understood as interfering with this right. His argument seems ultimately based on the idea that by intruding into the perception held by children of the homosexual lifestyle, the activists were intruding into their private lives.

Conclusion

 This case may be an instance where the Court was trapped by the arguments of the parties, forced into a position where pronouncing on the law was not enough, but rather it needed to take a side on the rights and wrongs of the moral positions espoused. Perhaps only by leaving the law ‘behind’ could it forge a way forward.