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Striking down Russia’s anti-gay propaganda law

Last month’s European Court of Human Rights case of Bayev and others v. Russia is important in a legal sense and inconsequential in a practical sense. The Court decisively said that Russia’s anti-gay propaganda law violated freedom of expression and was discriminatory. Of the seven judges, six decided that Russia was in the wrong. Only one judge—the judge from Russia—said that the law complied with human rights. This is a decisive legal victory in favor of freedom of expression, but it is doubtful that the court case will influence views of LGBT people in Russia and the region.

August 22, 2017 - Gabriel Armas-Cardona - Articles and Commentary

gay propaganda

How we got here

Russia passed its infamous anti-gay propaganda law in 2013. This law made it an administrative offense to distribute “propaganda of non-traditional sexual relationships” to children. The law never mentions homosexuality, but it is one of those situations where it is clear what “non-traditional” means.

While the national law came out in 2013, some regions in Russia passed similar laws much earlier. The first was in 2006 from the Ryazan Oblast, which “prohibited public activities aimed at the promotion of homosexuality among minors”. In 2008, the Oblast made it an administrative offense to violate that law.

Nikolay Bayev opposed that law. He organised a demonstration outside a secondary school and held up two signs saying “Homosexuality is normal” and “I am proud of my homosexuality”. He was fined for violating the law.

The Arkhangelsk Oblast created a similar law in 2011, and in 2012 Aleksey Kiselev and Nikolay Alekseyev held a demonstration similar to Bayev’s. They were both fined. Later in the year, when St. Petersburg passed its own law, Alekseyev protested in front of the city administration with a banner from a famous quote from the Soviet-era actress Faina Ranevskaya: “Homosexuality is not a perversion. Field hockey and ice ballet are”. He was arrested and fined.

The three activists challenged their fines in court. They took their cases to the Russian Constitutional Court. On September 23rd 2014—a year after Russia passed the national anti-gay propaganda law—the Constitutional Court decided against the activists. Then, they turned to the European Court of Human Rights.

The majority and the dissent

The European Court found in favor of the activists. The six judges that formed the majority said that Russia violated the applicants’ freedom of expression. Even Russia accepted that they had interfered with the applicants’ speech, but said that the interference was justified, pointing to the reasons that the anti-gay propaganda law was passed.  The other six judges disagreed and viewed the law in light of similar laws passed against LGBT people in other countries. They called it an instance of “predisposed bias”. This bias could not justify Russia’s interference with the applicants’ speech.

Surprisingly, the majority did not spend much time discussing discrimination. There are only six short paragraphs (which is nothing for lawyers) discussing how the law’s bias also meant that Russia discriminated against the applicants.

One judge dissented from the majority, Judge Dedov, who went in a completely different direction.

His legal argument seems reasonable at first: governments need to respect freedom of expression but also need to respect the private life of individuals, especially children. It is up to governments to figure out how to balance these two obligations. Russia’s anti-gay propaganda law is meant to do that. While the law might not be perfect, the Court should give deference to Russia since the case touches on sensitive cultural issues.

But the facts that underlie his legal argument are eyebrow-raising: “Children are vulnerable and credulous”. Exposure to homosexuality could cause them to become “interested in … homosexual relations”; “[A]s regards non-traditional sex, it is a much more complex issue on which children should be informed as late as possible when they become mentally mature”; “In the present case the purpose of the demonstration is the opposite – to raise awareness of non-traditional sex, thus making children more vulnerable to sexual abuse”; Thirty percent of the victims of pedophilia are boys, while “all offenders are men”, meaning there is disproportionately more “same-sex violence” against boys. Thus, it makes sense to make “a special reference to same-sex relations in the law.”

The evidence supporting these statements is flimsy at best. Russia’s defense was based in part on the idea that “a minor could be enticed into ‘[a] homosexual lifestyle’”—a point repeated in Dedov’s dissent. The majority rightfully rejected this because Russia could not provide “any evidentiary basis” to support the statement.

To give the best defense of Dedov’s view, children are extremely vulnerable and it is up to parents and the government to protect them from the dangers in the world. In his view, homosexuality is a deviance and is one of those many dangers.

Judge Dedov’s legal argument might be weak (shown by no other judge siding with him), but there is no question that his views on homosexuality have a lot of supporters. Homophobia is common in Eastern Europe.  Dedov’s dissent is illuminating as it gives an understanding of this illiberal world view and how that view cannot stand up to intense scrutiny.

The social impact of Bayev and others vs. Russia

The odds are stacked against this case, making a big difference on the ground. The Russian government released a statement opposing the verdict, and it is plausible that they will claim that complying with the verdict would violate the Russian constitution (a ploy they have used against other unpopular judgements from the European Court). Russia uses homophobia as a foreign policy tool, funding groups in satellite states that oppose human rights, particularly those regarding gender and sexual orientation. Those groups claim that embracing human rights is a slippery slope that will lead to marriage equality and San Francisco-style gay pride parades, concepts anathema to many in this part of the world. Those groups instead promote “traditional values” and its staunchest defender, Russia.

This case will not change the illiberal, homophobic worldview that pervades Eastern Europe and the Caucasus, and instead, will further continue the culture war. The decision adds fodder to the commonly held view that human rights are a tool used by the West to undermine traditional cultures and their governments. The bond between being traditional and being anti-LGBT is simply too strong; many people believe that to be pro-family one must be anti-LGBT.  A court case will not change that view. In the words of Dedov, “[t]his issue is vital for both conflicting parties, and they will never come to an agreement.”

What is the unspoken root of this world view? One recent national study done in Armenia shows many believe that homosexuality is like a disease that one can “catch”, just like one can catch the common cold. Children are more vulnerable and thus more susceptible to “catching it”. A solid victory in the European Court of Human Rights will not change this incorrect understanding of human sexuality. What will change it is education. These populations, including school children, need to learn instead that “homosexuality is normal”.

Gabriel Armas-Cardona is a human rights lawyer focusing on LGBT issues in Armenia.

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