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.

Law of Peace(making) and Transforming Children’s Invisibility

Courtesy of the Blog of the Groningen Journal of International Law (August 22, 2017).

The law of international human rights came into being through an international peacemaking process, in particular the successive processes that gave birth to the Charter of the United Nations. The law as developed affirms children’s legal standing and agency as subjects of human rights. There is a concomitant international obligation to affirm the same in relation to the successive processes of peacemaking and give effect to those rights through the resultant agreements, as recalled by treaty and Charter bodies. Yet children are mostly invisible in such processes. Its extent is laid bare by a cursory review of collections of peace agreements. Of the close to eight hundred peace agreements in the United Nations database, for example, approximately ninety-five include a reference to children. The extremity of their invisibility raises a multiplicity of questions. Is it justified from the perspective of the law of peace(making)? May children’s human rights yield to the pursuance of peace?  And if not, why are children (mostly) invisible in peacemaking? These questions sparked and structured a probe of peace processes from a juristic, human rights and child rights perspective. Continue reading

Eight reasons why the Safe Schools Declaration matters

Crossposted courtesy of The Right to Education Project (November 27, 2016), summarising a mini series of four postings on the international legal protection of education.

‘I felt that humanity has ended. I mean, a place of learning, to be hit in this way, without warning… where is humanity? …It is supposed to be illegal in any war to strike such places…’ A teacher’s account of airstrikes on al Shaymeh School, Hodeidah, Yemen (25 and 27 August 2015) in ‘Schools Under Attack in Yemen’ Amnesty International Report (11 December 2015).

‘Bodies were on the ground. We didn’t know what we were stepping on. […] There was no armed presence around the schools. Had there been, we wouldn’t have been teaching on that day.’  A teacher’s account of airstrikes on schools in Haas, Syria (26 October 2016) in ‘Russia/Syria: Satellite, Video Imagery Confirm School Attack’ Human Rights Watch Report (16 November 2016).

The testimonies of these two teachers, one Yemeni, one Syrian, evoke the egregious hurt and harm of attacks on schools. These attacks, among others, illume the imperative of conducing compliance with foundational rules of international humanitarian law, in particular, as recalled recently by the Security Council in relation to the Syrian attack above, the obligation to distinguish between civilian objects and military objectives, and the prohibition on indiscriminate attacks. Undergirding this is an another imperative of respecting the civilian character of schools.  The two are deeply interconnected. The international legal protection accorded schools from attack is necessarily contingent on their civilian character. It is of these dual imperatives that the Safe Schools Declaration was born. Led by the Governments of Norway and Argentina, 56 states have thus far signed the Declaration and committed to implementing the associated Guidelines.  And this matters. Continue reading

Law of peace(making) and the promise of a new beginning for children

Cross-posted courtesy of the Oxford Human Rights Hub.

The act of peacemaking may be viewed as the promise of a new beginning. It is latent within the sui generis legal form of the self-constituting process, and the often layered human rights transformation at its substantive epicentre. In the complex and evolving legality that constitutes peacemaking, international human rights claims often have heightened performativity. Or in other words, international human rights law (itself born of international peacemaking processes) is both applicable to, and performative within, the self constituting process of peacemaking. However, the layered human rights transformation is often partial: children and their rights are particularly likely to be invisible in the successive processes and agreements that constitute peacemaking. Yet, there is an international legal obligation to respect and ensure their rights ‘in’ and ‘through’ peacemaking, as affirmed by the Committee on the Rights of the Child and underwritten by the Security Council. Further, as noted in an earlier posting, peacemakers may for multifarious reasons — some principled, others political — commit to ‘transforming children’s rights as part of human rights’. So, why, then, are children mostly invisible in peacemaking? Continue reading

Seizing the ‘radical progressive potential of peace processes’* for children

 

The act of peacemaking may be viewed as the promise of ‘a new beginning’. The promise is latent within the complex and evolving legality that binds the self-constituting process, and the often layered human rights transformation at its substantive epicentre. Therein, as illuminated and crystallised by Christine Bell, lies the ‘radical progressive potential of peace processes’.* Like the progression of the process itself, it is made possible, at least partially, by legal and political imagination. The challenge is to seize this creativity to ensure children are part of this ‘new beginning’. Or in the words of George Bernard Shaw, it is about ‘dream[ing] things that never were and […] say[ing] ‘why not?” The aim of these six principles, informed from a critical and constructive probe of peace processes from a juristic, human rights and child-rights perspective, is to support this act of legal and political imagination.  Continue reading

Meta-engagement with international law, understated effects and engagers

Fourth of a series of four postings probing the international legal protection of the right to education within the converging contexts of emergencies, threats to international peace and security and armed conflict.

Images of violated spaces of learning — untouched since the moment of flight — have a visceral luminosity that belies the absence within. Latent there are the attacks, or acts of violence, of the recent past: the incursions of spatial and bodily inviolability, or as opined in postings one and two, violations of the duo dimensional international legal obligations to protect embodied learners, and their spaces of learning from attack. Lesser stated (if there is no rapid recovery response or alternative) is the multi-dimensional hurt and harm that lies beyond: the violations of the rights to, in and through education (see posting three). And the hurt and harm beneath: domestic embodiment of those rights may be partial and/or access to public affairs or remedies limited. Or in other words, the vulnerability shift from ordinary to extraordinary embodied vulnerability may precede, undergird and be exacerbated by the attack. The sole form of redress, then, may be international law.

Meta-engagement with international law 

Relatively the engagement doubles itself: extraordinary engagement invoked by the vulnerability shift (of which attacks on schools may form apart) is undergirded by ongoing ordinary processes of human rights treaty and Charter bodies and promotional engagement of the guardian of international humanitarian law. Discrete fractals of this engagement are renowned, if not infamous. If the violations of applicable international law are recurrent, the Security Council’s sui generis monitoring and reporting mechanism may be invoked, or if persistent, the Security Council may decide to adopt targeted and graduated measures against the listed violator. Equally the Office of Prosecutor of the International Criminal Court may, subject to its jurisdiction, act on its recent commitment ‘to pay particular attention to crimes against and affecting children’ (including those relating to attacks on schools in violation of article 8 (2) of its Statute) by either supporting genuine domestic investigations or opening an investigation itself. Undergirding both is the often unseen and unheard direct dialogue opened with applicable parties by the International Committee of the Red Cross and extraordinary mechanisms adopted by the Human Rights Council, for example, the Independent International Commissions of Inquiries. Continue reading

Knowledge and practice of rights ‘in’ and ‘through’ the inviolable spaces of learning

Third of a series of four postings probing the international legal protection of the right to education within the converging contexts of emergencies, threats to international peace and security and armed conflict. 

‘I felt that humanity has ended. I mean, a place of learning, to be hit in this way, without warning… where is humanity? …It is supposed to be illegal in any war to strike such places…’  Director of al-Shaymeh School, Hodeidah, Yemen (as cited in ‘Our kids are bombed’ Schools under attack in Yemen (Amnesty International, 11th December 2015), 17).

Held there is a widely held supposition: the multifarious spaces of lower and higher learning are supposedly inviolable from acts of violence. Such spaces are, after all, holders of embodied rights-bearers, principally learners, and their multidimensional right to education. Thus viewed inviolability is three-dimensional: spatial, bodily and inner. So too is the right as expressed in international law: the human rights treaty and Charter bodies (and eminent scholars) have illuminated the right as multi-dimensional, encompassing multiple composite rights ‘to’, ‘in’ and ‘through’ education. And it is of continuing applicability at the shift from ordinary to extraordinary ‘embodied vulnerability’ to hurt and harm. The right has been invoked by those same bodies within the converging contexts of emergencies, threats to international and peace and security and non/international armed conflicts. Too often—as exemplified by the recent violated spaces of learning—attacks on spaces of learning (and the embodied rights-holders within) form part of this vulnerability shift.

Of course it is the egregious acts of violence that capture attention—the bodily hurt and harm. Yet some attacks on spaces of learning may be viewed as less about incursions of spatial and bodily inviolability and more about incursions of inner inviolability: the creative (thinking, feeling) embodied self. The attack is targeted. And the target of the attack is education itself: the containment of thought part of the targeted hurt and harm. Or more accurately, the containment of thought by distinctionon the basis of protected aspects of our innermost identity. In other words it is specific (and age-old) form of violence: gender, race, or belief based or a composite amalgam. It, therefore, violates the rights to bodily integrity and security of the person among others, in conjunction with the right to non-discrimination, individually and as constituent elements of rights ‘in’ and ‘through’ education.

Continue reading

Geneva (III), politicking and possibility for Syria’s invisible 43%

Updated and revised version of the original, cross-posted courtesy of the Oxford Human Rights Hub (February 17, 2016). 

2015 faded into the new year with a glimmer of hope for the people of Syria. A hope propelled by renewed international engagement, as expressed within the Vienna Statements of October 30, 2015 and November 14, 2015 — and underwritten by Security Council Resolution 2254.  Two years since the dissolution of Geneva II, the UN Special Envoy for Syria reconvened formal negotiations between representatives of the Syrian government and opposition for January 25, 2016. In the face of continuing egregious violations of international humanitarian law, the proximity talks began a week late and were suspended — three days later.

Neither this, the time gap since Geneva II, nor the escalation of the conflict are unusual: peace trajectories recurrently stall, fracture and reconfigure, sometimes escalating and de-escalating over decades. More unusual is the form and intensity of that escalation: the ever increasing parties to the (increasingly internationalised) non-international armed conflict  and the layers of international lawlessness — the exponential rise in international crimes layer on the violations of international human rights law that sparked the protests and internal disturbances of March 2011. Continue reading

(Part II) Converging law, equivocation and delimits on the supposed inviolability of spaces of learning

 

CAR Along Religious Lines

Picture Courtesy of Marcus Bleasdale.

 

As opined in the first part of this posting, an international humanitarian obligation to respect and ensure respect for the civilian character of spaces of learning may be inferred from existing treaty and customary law. However the precise point of delimitation remained unanswered: when, if at all, may the space be lawfully transformed by, for example, military use? Of course determining this, the scope, demands probing the equipoise—the interrelations between the principles of military necessity and limitation—more deeply.

Yet to an extent, this too may be determined from treaty and customary law. Indeed military necessity itself extends the inviolability (or protection) of the space, in so far as it prohibits military acts if not militarily necessary. Thus there is minimally an obligation to refrain, from transforming learning spaces from civilian objects to military objectives, unless required by military necessity. And, in light of the multiple sources of international humanitarian rules from which the obligation may be inferred, there is reason to argue, the obligation is particularly restrictive; that is, it forms a prohibition on such transformation ‘unless imperatively required by military necessity’, on a par with the customary rule limiting the use of cultural property for military purposes, if not the more restrictive treaty rule. To this, there is another delimiter: humanitarian rules limiting the (vulnerability creating) effects of non/international armed conflict, both those basic and specific express rules of treaty and customary law, and the principles of precaution and proportionality applied as general principles of international humanitarian law. Indeed, and here the opinion becomes more precarious, in light of the multidimensional hurt and harm that may follow the use of learning spaces by armed forces/groups, it may be opined, such use is (or should be) presumed to be unlawful—disproportionate or excessive in relation to the military contribution and advantage sought. Continue reading

(Part I) Converging law, equivocation and delimits on the supposed inviolability of spaces of learning

CAR Along Religious Lines

Picture Courtesy of Marcus Bleasdale.

 

Chibok. Rafah. Peshawar. Garassa. Donetsk. Aleppo. Sana’a.

The recent violations of spaces (of lower and higher) learning have evoked near universal condemnation. Held there are ‘the dictates of public conscience’. Undergirding, if not sparking, this collective sense of injustice is a supposition: the spaces of learning are supposedly inviolable from attacks /acts of violence. From this, a supposition of law might follow: ipso facto the spaces are protected as inviolable as a matter of international law.  But is this so?

Of course, the multifarious spaces of learning, as holders of embodied subjects of rights, principally learners, and their rights to, in and through education, are necessarily accorded protection under international human rights law. The concomitant duo dimensional obligation to protect the embodied rights holder within the space from acts of violence, and the space as a safe space of learning continues within the converging contexts of emergencies, threats to international and peace and security and non/international armed conflicts. Indeed the latter triggers international humanitarian law—and the principles of distinction between civilians and combatants and civilian objects and military objectives, or in other words the humanitarian obligation to refrain from attacking learning spaces as civilian objects, and embodied persons in relation to the space, as civilians. The international legal protection, then, may be viewed as doubling itself: the human rights and humanitarian obligations are—complementary and mutually reinforcing. Of course, either way the—supposed—inviolability of the space is a partial international legal actuality; under both bodies of law the space may be lawfully delimited.  Continue reading