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Over the past year, members of the State Duma have proposed two significant legislative initiatives aimed at restricting rights and increasing discrimination against the LGBTIQ+ community.
I. The first initiative (Bill No. 217471-8), more commonly known by its populist name “Law on the Prohibition of LGBTIQ+ Propaganda,” has already been adopted. The law came into effect on December 5, 2022, and as a result, administrative liability was established for promoting a positive image of LGBTIQ+ among adults (Part 1 of Article 6.21 of the Code of Administrative Offenses of the Russian Federation).
As a result of the established practice of applying this article, it means that it is not only risky to publish or distribute LGBTIQ+ content in the form of cultural, or artistic works (films, series, books, magazines, educational lectures, performances, plays, etc.), but also, for example, to post photos of personal life on social networks, maintain a personal blog, podcast, or speak publicly about one’s life as an LGBTIQ+ individual. Any public expression of positivity towards the LGBTIQ+ community or public demonstration of a positive attitude towards LGBTIQ+ culture can be qualified by Russian law enforcement as “spreading information and imposing attractiveness of non-traditional sexual orientations.” It is worth noting that there is no liability for any expression that fosters a negative attitude towards the LGBTIQ+ community. Thus, disproportional regulation is created with the aim of excluding legal protection and support for LGBTIQ+ individuals and artificially strengthening homophobic sentiments within society.
It is impossible to overlook the fact that this law was written with legal inaccuracies. Even in the early stages of discussion, the bill contained such vague formulations that, upon repeated reading, legal uncertainty remained as to what actions could be considered violations. For the readers’ interest, they can familiarize themselves with the official wording of Part 1 of Article 6.21 of the Code of Administrative Offenses of the Russian Federation, which states the following: “Propaganda of non-traditional sexual relationships and (or) preferences or gender reassignment, expressed in the dissemination of information and (or) public actions aimed at forming non-traditional sexual orientations, attractiveness of non-traditional sexual relationships and (or) preferences or gender reassignment or distorted representation of social equality of traditional and non-traditional sexual relationships and (or) preferences, or imposition of information about non-traditional sexual relationships and (or) preferences or gender reassignment that arouses interest in such relationships and (or) preferences or gender reassignment.” Obviously, with this wording, the deputies pursued ideological and political goals: intimidation, coercion, and a complete ban on the visibility of LGBTIQ+ individuals in social spaces.
I will provide examples of why the formulation of punishment for so-called “LGBTIQ+ propaganda” is legally absurd and manipulates the rules of logic. Even if we assume that this law will be repealed in the future, public discussions and statements by the deputies themselves as to why this law should be repealed could be classified as “spreading information and imposing the attractiveness of non-traditional sexual orientations.” Furthermore, in practice, the broad formulations of the offense mean that the consideration of cases based on such statements can be de jure predetermined, and the administrative, and judicial proceedings can be formal. Suppose a judge refuses to hold someone accountable for alleged “LGBTIQ+ propaganda.” In that case, they will have to justify their decision in a court ruling, i.e., explain why the person’s actions do not constitute an unlawful act. Obviously, the judge will not do this in their ruling because otherwise, their justification for refusing to hold someone accountable for alleged “LGBTIQ+ propaganda” could create a “positive and appealing image of non-traditional sexual orientations” in the official court decision on behalf of the Russian Federation. Therefore, this legislative amendment is formulated in a way that excludes the possibility of impartial consideration of cases concerning the legal status of LGBTIQ+, particularly the principle of equality before the law and the court and the right to freedom of expression.
The purpose of this law is clear – to make LGBTIQ+ individuals invisible in Russia, to prohibit public expressions of support and approval for them among Russian citizens under the threat of administrative liability with disproportionately high fines (ranging from 50,000 to 100,000 rubles for individuals and from 800,000 to 1,000,000 rubles or suspension of an organization’s activities for 90 days for legal entities).
II. The second initiative (Bill No. 369814-8) was unanimously submitted by the deputies for consideration in the State Duma of the Russian Federation on May 30, 2023. This initiative aims to prohibit medical professionals from performing surgeries related to transgender transitioning and also prohibits changing the gender marker in documents (such as passports and birth certificates). Legally, this also means excluding same-sex unions if the partners have the same gender marker in their documents. The bill proposes canceling the current option for applicants to make changes to their personal civil status records by providing a special document issued by a medical organization in accordance with established procedures. The draft law was considered in the first reading on June 14, 2023. From the time the bill was submitted for discussion until its first reading, the deputies took only two weeks.
However, the current version of the bill contains numerous inaccuracies and significant legal issues. For example, the project does not provide for transitional provisions and the procedure for the implementation of the new restrictions. This not only demonstrates the low quality of legal drafting in preparing the bill but also, above all, the lack of understanding among the initiators of the legislative initiative regarding how transgender transitioning is carried out, how much time is required for hormonal therapy, and what should be done for individuals who are currently undergoing transition.
Furthermore, the current version of the bill says nothing about the situation of intersex individuals who seek to protect their personal integrity. As stated in the wording of the bill, which states, “medical interventions related to the treatment of congenital physiological anomalies in gender formation in children are permitted by the decision of the medical commission of a federal healthcare institution,” it is likely that the deputies only want to allow transgender transitioning based on medical criteria and only during childhood. However, the bill does not mention anything about the consent of parents and the child for such an operation. The project also fails to address how the proposed changes will work together with existing legal norms, including obtaining mandatory consent for such medical interventions. Additionally, the bill overlooks the issue of confidentiality of medical documents and information.
In other words, the existing procedure for transgender transitioning is prohibited, changes to the gender marker in documents are prohibited, and a new procedure for recording sensitive personal data and medical documentation is not provided in the draft law. This can lead to various consequences.
All of this demonstrates how poorly and hastily this legislative initiative was introduced. Therefore, it is very difficult to determine the legal consequences and moral and physical harm that will definitely be caused by the implementation of this initiative becoming law.
The goal of this legislative initiative is outlined in the explanatory note to the bill. Deputies see transgender transitioning and changing the gender marker as a threat to national security and the traditional spiritual and moral foundations of Russian society. However, the specific nature of the threat and the particular spiritual and moral values being protected are not specified by the project initiators. According to the text of the explanatory note, deputies, citing official statistics from the Ministry of Internal Affairs of the Russian Federation, see a threat to national security in the fact that 996 citizens out of a population of over 140 million people in Russia submitted applications to change their gender marker in their passport in 2022. These circumstances only confirm the deputies’ desire to divide citizens in Russia into “traditional” and “non-traditional” categories, using such legislative initiatives as a tool to enhance their personal political ratings, without considering the consequences for society.
Most likely, this transphobic bill will be passed with a high probability. However, it is difficult to say in what final form it will be passed, what issues will be discussed by the deputies in subsequent readings, and when it will be passed. In the practice of the State Duma of the Russian Federation in the past year, a bill can be passed in all three readings within a few days, and amendments and changes can be made to the bill at any time, which means that transgender individuals will simply not exist legally according to their documents.
III. Why should we now pay serious attention to these legislative initiatives?
Undoubtedly, these two initiatives do not withstand criticism in terms of compliance with the law and are simply manifestations of hate speech rather than legal language. The implementation of these two initiatives will not only have a negative impact on the LGBTQ+ community in Russia but will also legally restrict many people’s access to a normal social environment, access to information resources, and medical assistance. These laws are inherently unlawful and must be repealed.
The initiatives of the deputies, which restrict the rights and freedoms of the LGBTIQ+ community, are acquiring a consistent and periodic character. For example, the need for the adoption of the transphobic bill is justified by the previously adopted homophobic bill, the “Law on the Prohibition of LGBTIQ+ Propaganda.” It is unknown how many similar initiatives will follow. Furthermore, criticism of these legislative proposals in the Russian media space is complicated by the fact that there is now administrative liability for promoting a positive image of LGBTIQ+ individuals among adults. Under these conditions, informing the community and providing legal assessments of legislative initiatives becomes an important task.
IV. What is notable about the adoption of these initiatives?
If we discuss the process of adopting these bills, we will discover important details that shed light on the procedure for proposing and considering initiatives specifically related to LGBTIQ+ matters in the past year.
Firstly, such bills are introduced unanimously by deputies from all factions, who also vote unanimously for their adoption. This process of presenting legislative initiatives is intended to highlight the unity of deputies’ positions on LGBTIQ+ issues and blur the individual responsibility of each deputy to their constituents. Deputies emphasize this fact in official responses to activists’ inquiries to demonstrate a consolidated position on LGBTIQ+ issues and their unwillingness to discuss or consider any alternative viewpoint. This demonstrates the deputies’ formal approach to the problem.
Secondly, some deputies who have endorsed these bills express surprise at the official appeals they receive from citizens requesting an explanation for why the deputy supports an initiative aimed at further restricting the rights of LGBTIQ+ individuals. This confirms the formal approach to collecting signatures in support of the legislative initiative.
Thirdly, during the discussion of the bills, deputies refuse to engage in public discussions with representatives of the LGBTIQ+ community, who are directly affected by these laws. It can also be observed that deputies do not seek to involve experts or specialists or obtain expert opinions from independent civil society organizations. This is an important detail to understand that there is a complete absence of scientific justification and a real understanding of the situation of LGBTIQ+ individuals in Russia within the legislative initiatives, which are actually of no interest to the deputies.
Fourthly, attention should be drawn to the speed at which these legislative initiatives are being adopted. It is evident that it is impossible to prepare and review a bill within a short period. This further confirms the purely formal approach of the deputies towards the issue of the rights and freedoms of LGBTIQ+ people.
Fifthly, the procedure for adopting bills requires obtaining expert opinions, for example, from the Ministry of Justice of the Russian Federation and other competent authorities. This requirement is also fulfilled in a formal manner during the legislative process. The Ministry of Justice needed less than one page to support the introduction of responsibility for the so-called “Law on the Prohibition of LGBTIQ+ Propaganda,” and the Health Committee of the State Duma needed only one sentence to support the restriction of transgender transition and the prohibition of medical professionals from performing surgeries. For example, during the discussion of the bill on the prohibition of transgender transition, a deputy publicly stated that if the Ministry of Health of the Russian Federation does not agree with the bill, then it would be better for them not to submit amendments to the bill for the second reading.
The above-mentioned characteristics of the legislative process are sufficient to confirm the lack of genuine interest and the formal attitude of the legislative initiative’s subjects towards the issues under consideration. It also demonstrates the non-legal nature of the initiatives in terms of their content and form, even during the stage of development and discussion, with the absence of any official and independent debate on the texts of the bills concerning LGBTIQ+ matters during the immediate consideration and voting in the current convocation of the Russian Federal Assembly.
V. Why do these draft laws contradict the law?
The European Court of Human Rights has repeatedly expressed the position that legislative bans on the promotion of non-traditional sexual relationships among minors are examples of predisposed prejudice of the heterosexual majority towards the homosexual minority, which in itself cannot justify legislative intervention in this area (Bayev and Others v. Russia, 2017). The exercise of minority rights, subject to the majority’s discretion, is incompatible with the fundamental values of the Convention for the Protection of Human Rights and Fundamental Freedoms. If that were the case, many minority rights would be merely theoretical, rather than practical and enforceable according to the requirements of the Convention (Bayev and Others v. Russia, 2017; Alekseyev v. Russia, 2010; Zhdanov and Others v. Russia, 2019).
Furthermore, the European Court of Human Rights, when assessing the Russian law on the “Ban on LGBT+ Propaganda” concerning minors, stated that the law and the measures provided therein do not contribute to achieving the legal objectives of protecting morality or safeguarding health; instead, they exacerbate the state of society. The vague formulations used in the law only create legal uncertainty in its application and the possibility of abuse in specific cases. Moreover, by enacting such laws, authorities reinforce stigmatization and prejudices and promote homophobia, which is incompatible with the concepts of equality, pluralism, and tolerance inherent in a democratic society (Bayev and Others v. Russia, 2017).
Unfortunately, the question of whether these two legislative initiatives (I. “Law on the Prohibition of LGBT+ Propaganda among adults” and II. “Law on the Prohibition of Gender Marker Change and Transgender Transition”) can be recognized as unlawful remains open, as Russia ceased to be a party to the Convention for the Protection of Human Rights and Fundamental Freedoms and withdrew from the jurisdiction of the European Court of Human Rights on September 16, 2022. These initiatives were adopted after Russia’s withdrawal from the ECHR.
It should be noted that these legislative initiatives contradict the existing national Russian law, making them blatantly unlawful and particularly cruel towards the LGBT+ community. Understanding that the recognition of these projects as unconstitutional in the Constitutional Court of the Russian Federation is currently challenging and that constitutional control is absent regarding LGBT+ rights, deputies can initiate and adopt any draft laws. For example, such initiatives simply ignore the position of the Constitutional Court of the Russian Federation that issues of separate legislative regulation affecting sexual and interpersonal relationships should be resolved in accordance with the Constitution of the Russian Federation and international legal acts concerning individual autonomy, and that the proposed provisions affecting sexual and interpersonal relationships do not relieve the state of its constitutional obligations to prevent arbitrary intrusion into the private sphere, respect the associated differences, take measures aimed at eliminating potential infringements of rights and legitimate interests based on sexual orientation, and provide effective opportunities for the protection and restoration of their violated rights based on the principle of equality before the law and the court, as enshrined in Article 19 (part 1) of the Constitution of the Russian Federation (Position of the Constitutional Court of the Russian Federation in Conclusion No. 1-Z of March 16, 2020). The laws and proposed amendments by legislative initiative subjects do not take into account this position of the Constitutional Court of the Russian Federation. Thus, the adopted legislative initiatives of deputies, which lack scientific justification, violate not only international legal acts but also the domestic national law of Russia, in particular, the principle of legal certainty, individual autonomy, prohibition of excessive regulation, which is unacceptable, as well as the principle of proportionality of the act and punishment. Furthermore, the Law on the Prohibition of Gender Marker Change and Transgender Transition will limit the fundamental human right to medical assistance.
All of this demonstrates a completely new sphere of restrictions on rights and freedoms for the LGBT+ community in Russia and the disregard for the established legal framework and the practice of implementing existing regulatory regulations by legislative initiative subjects.
Dmitry Denisov Lawyer, LGBT World Beside Volunteer