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.

The Orlando Attacks and LGBTI Rights

Photo credit: Sexual Minorities Uganda (SMUG). Paying tribute to the victims of the Orlando attacks.

Photo credit: Sexual Minorities Uganda (SMUG). Paying tribute to the victims of the Orlando attacks.

 

Lesbian, gay, bisexual, trans and intersex (LGBTI) communities and their allies around the world are rallying together to express their solidarity and sadness following the shootings in Orlando, Florida. In the early morning of June 12, a gun man opened fire in a night club popular in the LGBTI community, leaving at least 49 people dead and over 50 wounded. A large proportion of the victims were people of color, particularly those from the Latino community.

The brutal reality is that these deaths are only the most recent in a long list of documented abuses and killings of LGBTI individuals globally. Many studies have reported incidences of murder, physical abuse, including sexual assault, beatings, stabbings, kidnappings, and psychological harm, such as coercion or threats inflicted on account of a person’s actual or perceived sexual orientation, gender identity and/or gender expression. (See for example the 2011 report of the UN High Commissioner for Human Rights, ‘Discriminatory Laws and Practices and Acts of Violence against Individuals Based on their Sexual Orientation and Gender Identity’ and the 2014 ‘Overview of Violence Against LGBT Persons’ of the Inter-American Commission on Human Rights Rapporteur on the Rights of LGBTI Persons.)

A common thread involving many attacks against LGBTI individuals is their particular brutality in comparison with other bias-motivated violence, more often demonstrating severe cruelty, such as mutilation. This conduct is perpetrated by private actors, including members of the family and community, but also by state agents.

The attacks in Orlando are a stark reminder that there is no place in the world where LGBTI people are free from discrimination and violence. Human rights violations against LGBTI people occur in a host of settings, including detention facilities, medical institutions, the home, the community and other public places. Spaces claimed as LGBTI-friendly continue to be especially vulnerable targets of hatred, harassment and violence.

Entrenched laws and policies, many rooted in British colonial legislation and maintained by post-colonial regimes, reinforce the stigmatization, discrimination and violence against members of this community. Intimate, consensual same-gender relations between adults are still criminalized in over 70 countries, with penal sanctions that include the death penalty in several countries.  A host of laws prescribe acceptable gender identity and/or gender expression by prohibiting behaviour, including imitating the appearance of the opposite sex. In some instances, laws of general application, such as prostitution or indecency, are used to sanction people solely on the basis of their perceived sexual orientation and/or gender identity. The intolerance and prejudice perpetuated by such provisions may be bolstered by prevailing social, cultural and religious norms debasing those who fail to comply with hetero-normative behaviours and societal-imposed binary perceptions of male and female. The stigmatizing legacy can endure long after anti-LGBTI laws have been repealed.   Continue reading