A.M. & Ors. v Russia: Severing Contact Rights between Transgender Parents and their children violates Human Rights

Russia’s hetero-normative view of “family” and “traditional values” is the basis of its anti-LGBTQ+ policies. It infamously classified being transgender as a “medical impediment” and banned same-sex marriage and adoption by transgender persons in 2020. Social stigma against LGBTQ+ communities in Russia is often supplemented with discriminatory state policies.

A.M. & Ors. v Russia concerns one such instance of institutional bias against a transgender parent. The applicant, a transgender woman, had two biological children. After her transition, her ex-wife sought to restrict her contact rights with their children. She claimed psychological harm to them as a result of social marginalisation and exposure to “non-traditional” sexual relations, alluding to Russia’s infamous “gay propaganda laws” that prohibit the dissemination of information about the LGBTQ+ community to children. 

The Russian District Court’s decision, later affirmed by the Supreme Court, suspended the contact rights of the applicant. She, therefore, approached the European Court of Human Rights (“ECtHR”). 

The ECtHR Decision

The ECtHR ruled that the Russian Court’s decision improperly balanced A.M.’s rights against the potential harm to her children because the Court had based its decision on a singular, highly-contested study that stated that a parent’s transition would negatively impact their children while recognising that there was a dearth of literature studying this phenomenon. The Russian Courts failed to examine the family situation to identify demonstrable harms to justify the suspension of the applicant’s contact rights. It was found that the decision was motivated by prejudice against her gender identity and hence violated Article 8 of the European Convention of Human Rights (“ECHR”).

Furthermore, the Court found that there was no justification for differential treatment except for A.M’s transition. Article 14 was previously applied by the ECtHR in Bayev v Russia to prohibit discrimination based on gender identity in the context of Russia’s “gay propaganda laws”. In casu, since A.M.’s gender identity was the sole reason for her differential treatment from similarly-placed cisgender parents, the ECtHR found that Article 14 was violated in conjunction with Article 8. 

Stripping transgender parents of contact rights violates International Human Rights Law

International instruments and a slew of human rights case law support the conclusion of the ECtHR in A.M that the state-sanctioned separation of a parent from their child, solely on the basis of their gender identity, is violative of international human rights law.

UNHRC’s General Comment 16 requires the term “family” to be interpreted broadly. Arguably, this means that rainbow families must be brought within the ambit of the term as well. 

In relation to contact rights, the Convention on the Rights of Child, in Article 9(3), codifies a child’s right to maintain direct contact with both parents on a regular basis in instances of separation, unless contrary to their best interest. The term “best interest” was famously explained by the Inter-American Court of Human Rights (“I-ACtHR”) in Atala Riffo v. Chile where it was held that “best interest” cannot be discriminatory on the basis of gender or sexual orientation of parents and that it is strictly limited to assessing impacts of negative parental behaviour. Therefore International Human Rights Law is clear on family rights being available to LGBTQ+ families sans discrimination. 

It must be noted that the Strasbourg Court has also ruled to protect the rights of rainbow families. In Salgueiro da Silva Mouta v. Portugal, a divorced father in a same-sex relationship was prohibited from visiting his child. Portuguese courts deemed that “the child should live in a traditional Portuguese family,” alluding to same-sex partnerships as “non-traditional” and therefore a legitimate ground to take away contact rights. The ECtHR held that such a decision violated Article 8 and Article 14 of the ECHR. 

The primary reason why domestic courts in the European Union have been hesitant to allow contact rights to LGBTQ+ parents is because they factor in societal prejudices against the children as harmful to their best interests. Therapy can be used as a progressive tool to bridge the gap between a conservative society and rainbow families. In A.V. v Slovenia the ECtHR ruled that states must take every measure necessary- including family therapy, to ensure that children adjust to changes in the family dynamics before suspending parental rights. In line with this decision, the potential social backlash against rainbow families cannot be a reason to suspend the contact rights of an LGBTQ+ parent. Instead, children must be given the opportunity to adjust to their parents’ identity with the state’s support. 

This would be in line with previous ECtHR rulings wherein the Court has created a positive obligation on the State under Article 8 of the ECHR to ensure that they take all practical measures necessary to ensure that parental contact rights are not frustrated. In Kılıç v. Turkey, the lack of civil mediation to mend familial relations was held to be a violation of Article 8. Therefore, Article 8 not only obliges states to not discriminate against the parent on the basis of their gender identity but also requires them to take measures to ensure that contact rights can actually be exercised.

Conclusion

The ECtHR’s judgement is a welcome reaffirmation of transgender persons’ family rights under the ECHR. It condemns factoring societal prejudices as a “harm” to children while deciding cases involving contact rights. However, it misses the opportunity to enforce states’ positive obligation to protect rainbow families under Article 8. 

In casu, the Court could have compelled Russia to facilitate family therapy as a part of its positive obligation to help children adjust to social biases against their parent’s way of life. Unfortunately, it missed the opportunity to do so. However, it is important to note that the joint concurring opinion of Judges Ravarani and Elósegui suggests family therapy to protect A.M.’s contact rights. This is in line with the aforementioned ruling in A.V. v Slovenia.

Such a position on family rights is particularly important as it allows LGBTQ+ persons to exercise their right to live and love freely with lesser fear of loss of contact and alienation from their family. It obliges the state to act on ushering in social acceptance of LGBTQ+ rights, thus enabling members of the community to enjoy their family rights at par with “traditional” families.

Introducing Lekha Suki and Soundarya Rajagopal

It is our great pleasure to introduce our new IntLawGrrls Contributors Lekha Suki and Soundarya Rajagopal.

Lekha Suki is a 4th Year Undergraduate Law Student at the School of Law, Christ University in Bangalore, India. She is the Student Convenor of the International Relations and Foreign Policy Committee at her University. 

Soundarya Rajagopal is a third-year undergraduate law student at Gujarat National Law University in Gandhinagar, India.

Heartfelt welcome!

Go On! American University Washington College of Law’s LL.M. Program on International Human Rights and Humanitarian Law

American University Washington College of Law is accepting applications for its Master’s in International Human Rights and Humanitarian Law.

The LL.M. in International Human Rights and Humanitarian Law is accepting applications for its three tracks: in-person, hybrid and online programs. Students will benefit from a flexible curriculum focused on over 20 human rights courses offered every year and taught by human rights faculty and world renowned experts

Additionally, this degree is also offered in a bilingual format (LL.M. en Derechos Humanos y Derecho Internacional Humanitario) for multi-lingual lawyers looking to receive formal training in both languages. Students can opt to do the program in English, Spanish or in a bilingual format.

The deadline to apply is December 1, 2021, and classes will begin in January 2022.

Email AUWCL at humanrightsllm@wcl.american.edu to set up a zoom appointment and click here to apply!

Go On! Transnational Justice Project Critical International Law Salon Series

Go On! makes note of interesting conferences, lectures, and similar events.

►  The Transnational Justice Project announced open registration for a webinar on Justice, Law, and Structural Inequality on October 1, 2021 as part of a Critical International Law Salon Series leading up to the Transnational Justice Project’s upcoming critical international law summer school in Rwanda next year. This panel will reflect on various approaches to justice and to what extent law and justice are interrelated and how they are related to other mechanisms.

Individuals interested in attending this webinar should register online at https://justice-law-structural-inequality.eventbrite.com. For more information on events co-sponsored by the Transnational Justice Project including the upcoming Critical International Law School in Rwanda, click here.

To build a more equal global system, the UN General Assembly must first turn to remedying the UN’s own past human rights violations

To build a more equal global system, the UN General Assembly must first turn to remedying the UN’s own past human rights violations

As the United Nations (UN) General Assembly, the main deliberative and policy-making body of the UN, meets this month to address and debate the most pressing issues around the globe, it must finally ensure reparations to survivors of human rights violations in Haiti who continue to live without justice and restitution and for which the UN bears responsibility.

The overall theme for the meetings includes revitalizing the UN and respecting the rights of people. UN Secretary-General Guterres wants us to re-imagine the international system in the wake of COVID-19 and to address inequality by reforming global institutions like the UN to ensure power, wealth, and opportunity are shared more fairly. While these ambitions are commendable, the UN’s rhetoric does not line up with its (in)action. Among its other moral abdications, the UN has failed to take meaningful responsibility and offer restitution for human rights violations in Haiti, most notably with respect to a deadly epidemic that it caused and sexual exploitation and abuse (SEA) of vulnerable women and girls perpetrated by its peacekeeping troops. The UN’s calls for a fairer global system and respect for human rights cannot hold water when they are failing to deliver on accountability to populations it is meant to serve.

The many challenges facing Haiti in the fulfilment of its population’s human rights are rooted in the policies of, and engagement by, foreign states and non-state actors. Of major concern is that foreign actors often fail to take responsibility where they don’t deliver on their promises and where their work directly causes more suffering. 

For example, the UN’s fifteen-year long peacekeeping presence in Haiti that ended in 2019 resulted in several human rights violations. In October 2010, ten months after a catastrophic earthquake, UN peacekeepers introduced cholera to Haiti, which had not previously had the disease. The result was one of the largest and deadliest cholera outbreaks of the 21st century that caused at least 10,000 deaths and infected almost a million. Families were further ravaged by the financial burdens of seeking medical care and losing breadwinners. In what one senior UN human rights official has called “the single greatest example of hypocrisy in our 75-year history,” the UN failed to accept legal responsibility for the epidemic, resulting in a pitiful response that has provided no compensation to victims, in violation of their internationally recognized right to effective remedy

The UN’s failure to provide redress for cholera victims has meant that Haiti was still recovering from cholera when COVID-19 hit and when, on August 14 of this year, a 7.2 magnitude earthquake struck its southern peninsula. The continuing devastating impacts of the epidemic on thousands of Haitian families has contributed to the country’s extreme vulnerability to man-made and natural disasters

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Write On! Yearbook of International Disaster Law Call for Papers

The Yearbook of International Disaster Law aims to foster the interests of academics and practitioners on legal issues relevant to all forms of natural, technological and human-made hazards, including rapid and slow onset disasters as for the effects of climate change.

The Yearbook includes both a “Thematic” section and a “General” section. The theme for issue no. 4 is “Regionalization and Localization of International Disaster Law” and authors are encouraged to submit abstracts that either explore legal/institutional approaches adopted by regional and sub-regional organizations toward disaster law issues or the interaction of international disaster law and policies with domestic legal orders and local actors.

Abstracts for potential papers to be published in the ‘Thematic’ and ‘General’ articles sections should be sent by November 14, 2021 to the e-mail address: info@yearbookidl.org. Abstracts should be between 700 and 1000 words. Authors are kindly requested to attach a short curriculum vitae to their e-mail.

For more information, click here.

Go On! Virtual Queer Workshop: “International Law Dis/Oriented”

The Graduate Institute of Geneva is hosting “International Law Dis/Oriented: Queer Legacies and Queer Futures” a virtual queer workshop on international law from September 27 to October 1, 2021.

The Workshop consists of ten different “Stations” where “Lead Travelers” engage with each other in conversations about queer analytical sensibilities and queer methods in the study of international law

Two of the stations are public. For example, on Wednesday, September 29, there will be a conversation on gender theory in practice between Victor Madrigal Borloz (UN Independent Expert on sexual orientation and gender identity) and Dianne Otto (Professor at Melbourne Law School).

The private stations are limited on a first come – first served basis to ensure intimate and dynamic conversations.

Registration ends September 26, 2021. For more information and to register, click here. For any questions, email queerlaw@graduateinstitute.ch

Introducing our new student editors: Yomidalys Güichardo, Hailey Petrick and Talia Heller

The IntLawGrrls editorial team is delighted to welcome three new student editors to the blog: Yomidalys Güichardo, Hailey Petrick and Talia Heller.

Yomidalys Güichardo is a third-year law student at the Benjamin N. Cardozo School of Law in New York City. Prior to attending Cardozo, she received a B.A. in Political Science and Writing from Syracuse University, where she spent a semester abroad in Strasbourg, France and in Hirakata, Japan. Her undergraduate studies in international relations and human rights led to her interest in international law. After law school, she hopes to pursue a career in international law, particularly in the areas of civil and political rights, refugee rights, or national security. 

Hailey Petrick is a third-year law student at Benjamin N. Cardozo School of Law in New York City. Prior to attending Cardozo, she received her B.A. in Sociology, with a minor in Psychology and Social Innovation & Social Entrepreneurship (SISE), from Tulane University in New Orleans. Through her undergraduate coursework, she developed a deep understanding of gender inequality in society. After graduating from Cardozo, Hailey plans on pursuing a career in international business transactions. 

Talia Heller is a second year law student at Benjamin N. Cardozo School of Law in New York City.  As an undergraduate, she attended Emerson College and received her B.F.A. in Acting and Writing. After graduating, she pursued a career in entertainment. She now hopes to be a strong legal advocate for the most vulnerable in society, domestically and internationally. 

Heartfelt welcome!

Go On! International Law Weekend 2021

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Go On! makes note of interesting conferences, lectures, and similar events.

►  The International Law Association announced open registration for International Law Weekend (ILW) 2021 – International Law in Challenging Times, an annual conference, which will be held on October 28-30, 2021, virtually. The conference features 32 panels (many of which offer CLE) on an array of public and private international law topics, two keynote addresses, a High-Level Opening Plenary, and more than a dozen professional networking events. A full program of events is available hereOf note, this year ILW are pleased to provide a special offer of ILW 2021 registration and ABILA Membership (through December 31, 2022) for just $110 – a savings of at least $145 over two years. Students always attend for free. 
More information about this event can be found here.

Go On! Public Lecture Series

Go On! makes note of interesting conferences, lectures, and similar events.

►  The Graduate Institute of Geneva, announced open registration for Diversity on the International Bench: Building Legitimacy for International Courts and Tribunals“, led by Professors Neus Torbisco-Casals and Andrew Clapham, which will be held virtually on October 27, 2021 at 6:30PM. This lecture will be delivered by Dr. Navi Pillay and is part of the Public Lecture Series, Women’s Voices in the International Judiciary. For more information and registration, click here.