On November 19th the UN Human Rights Committee issued its decision in Irina Fedotova v. Russian Federation, Communication No. 1932/2010, a complaint involving a form of codified discrimination on the basis of sexual orientation that has become increasingly prevalent. The Human Rights Committee found that the applicant’s conviction under the Ryazan Law on Administrative Offenses (Ryazan Region Law) which prohibits “public actions aimed at propaganda of homosexuality among minors” violated her right to freedom of expression, read in conjunction with her right to freedom from discrimination, under the International Covenant on Civil and Political Rights (ICCPR).
Fedotova was convicted of an administrative offense under the Ryazan Region Law and ordered to pay a fine of 1,500 roubles for displaying two posters stating, “Homosexuality is normal” and “I am proud of my homosexuality” near a secondary school. According to Fedotova, the purpose of the posters was to promote understanding and tolerance. However, the Constitutional Court, to which Fedotova appealed, found that the Ryazan Region Law did not violate Fedotova’s rights because the prohibition on propaganda of homosexuality was targeted at preventing the spread of “intentional and uncontrolled information capable of harming health, morals and spiritual development, as well as forming perverted conceptions about equal social value of traditional and non-traditional family relations – among individuals who, due to their age, lack the capacity to critically and independently assess such information.” The Constitutional Court found this objective to be a legitimate aim, in part because the Russian Constitution includes protections for children and “traditional” families, and then found that the law was not an excessive limitation on freedom of expression because it was not discriminatory, in that it did not prohibit or disparage homosexuality. Pursuant to this reasoning, the Constitutional Court held the law was justified.
The International Commission of Jurists (ICJ) disagreed. In a legal opinion submitted to the Human Rights Committee, the ICJ stressed that the Ryazan Region Law was an “impermissible limitation of freedom of expression because it [was] discriminatory.” The ICJ argued that sexual orientation is a protected ground under Articles 2 and 26 of the ICCPR and that “public morality is not a reasonable and objective justification.” Articles 2 and 26 prohibit States from discriminating, or sanctioning discrimination “of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
With regard to the purported public morality justification, the ICJ argued that “conceptions of public morality are subject to change” and cited amendments to the laws of countries such as Austria and the United Kingdom repealing provisions that discriminated against homosexuals. The ICJ’s discussion of public morals was partly aimed at convincing the Human Rights Committee to not follow its 1982 decision in Hertzberg et al v. Finland, Communication No. 61/1979, Views of 2 April 1982, in which the Committee accepted the Finnish government’s argument that a provision of its Penal Code prohibiting “publicly encourag[ing] indecent behavior between persons of the same sex” was justified on the grounds of protecting public morals and within the State’s margin of appreciation in implementing the ICCPR. As summarized by the Committee, the ICJ argued that Hertzberg was not dispositive because:
(a) Equality law, in the jurisprudence of the Committee and other human rights bodies, has developed significantly since April 1982 when the Views in Hertzberg et al. v. Finland were adopted. At that time, sexual orientation was not recognized as a status protected from discrimination and now it is;
(b) Also since 1982, the Committee and other institutions have recognized that limitations on rights must not violate the prohibition of discrimination. Even a limitation with a permissible aim – such as the protection of public morality – may not be discriminatory;
(c) Conceptions of public morality are subject to change and what was considered justifiable with reference to public morality in 1982 is no longer the case today. Laws similar to paragraph 9 of chapter 20 of the Finnish Penal Code have since been repealed in States such as Austria and the United Kingdom of Great Britain and Northern Ireland. Furthermore, the Committee’s jurisprudence reflects the evolution of the “public morals” conceptions, as does the case law of the European Court of Human Rights.
Fedotova v. Russia, at para. 5.9 (internal citations omitted). In light of these developments, the ICJ argued that the Ryazan Region Law was an impermissible restriction on freedom of expression because it discriminated on a prohibited ground and protecting public morality was not a reasonable, objective justification for that discrimination.
The Committee’s Views
The Committee noted that the fact that the law restricted Fedotova’s freedom of expression was not in dispute; instead, what was at issue was whether the restriction was justified under the ICCPR. Article 19(3) of the Covenant states that freedom of expression may be “subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For the respect of the rights or reputations of others; (b) for the protection of national security or of public order (ordre public), or of public health or morals.” The Committee dispensed with a discussion of whether the restriction in Fedotova was provided by law, however, because “irrespective of the domestic lawfulness of the restriction in question” laws restricting freedom of expression must also be “compatible with the provisions, aims and objectives of the Covenant including the non-discrimination provisions of the Covenant.” In order to be compatible with the Covenant, a differentiation based on a protected ground must be based on “reasonable and objective criteria in pursuit of an aim legitimate under the Covenant.”
Implicitly agreeing with the ICJ’s argument that the Committee’s jurisprudence on the issue of equality had evolved significantly since the Committee’s decision in Hertzberg, the Committee cited to views adopted post-Hertzberg that the prohibition on discrimination found in Article 26 encompasses discrimination based on sexual orientation. Additionally, the Committee cited its most recent general comment, General Comment 34, in which it stated:
the concept of morals derives from many social, philosophical and religious traditions, consequently, limitations […] for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition. Any such limitations must be understood in the light of universality of human rights and the principle of nondiscrimination.
General Comment 34 on Article 19, para. 32.
The Committee held that the law made a distinction on the basis of sexual orientation which was unjustified and that the law’s application to Fedotova was not necessary to further a legitimate aim. In evaluating the Ryazan Region Law, the Committee found it significant that the law targeted “propaganda of homosexuality as opposed to heterosexuality or sexuality in general.” The Committee found that “no evidence which would point to the existence of factors justifying such a distinction ha[d] been advanced.” Rejecting Russia’s argument that the law was intended to protect the morals and well being of minors, the Committee found that Fedotova had not made “any public actions aimed at involving minors in any particular sexual activity or at advocating for any particular sexual orientation.” Even if Russia’s argument that “she intended to engage children in the discussion of issues related to homosexuality” were accepted, Russia had still “failed to demonstrate why on the facts it was necessary to restrict the author’s right to freedom of expression.” The Committee therefore concluded that Russia had violated Fedotova’s right to freedom of expression, stating:
the Committee concludes that the author’s conviction of an administrative offence for “propaganda of homosexuality among minors” on the basis of the ambiguous and discriminatory section 3.10 of the Ryazan Region Law, amounted to a violation of her rights under article 19, paragraph 2, read in conjunction with article 26 of the Covenant.
Irina Fedotova v. Russian Federation, para. 10.
“Homosexual Propaganda” Laws in Context & the Impact of the Committee’s Views
The Ryazan Region Law is not unique. A number of cities and towns in Russia, including St. Petersburg, have adopted similar laws banning “homosexual propaganda among minors” citing public health and morals grounds. In protest of the St. Petersburg law, the Italian city of Milan “tore up a 45-year agreement to hold ‘sister city’ status” with Russian city. According to the ICJ, these laws “are in direct defiance of the European Court of Human Rights.” In ECtHR, Alekseyev v. Russia,[GC], nos. 4916/07, 25924/08, and 14599/09, Judgment of 21 October 2010, the European Court held that Russia had violated Articles 11 (freedom of assembly and association), 13 (effective remedy), and 14 (prohibition of discrimination) of the European Convention on Human Rights when authorities repeatedly refused permission to hold a gay pride event in Moscow on public safety and morals grounds after religious groups objected to the event.
Meanwhile, several cities in Moldova have adopted laws prohibiting “aggressive propaganda of non-traditional sexual orientation demonstrations” while bills criminalizing “homosexual propaganda” were introduced in Hungary, Lithuania, and Ukraine. The two bills being considered by the Ukrainian Parliament that would criminalize “homosexual propaganda” could have broader public health implications depending on how they are interpreted. According to the BBC, the two bills could “damage efforts to stem Ukraine’s already stratospheric HIV rate, if, for example, some anti-AIDS information were to be prohibited.”
Although the Committee’s decision in Fedotova is encouraging for human rights activists, it may not produce an immediate change in the situation on the ground. One week after the Committee issued its views, the Guardian reported that the Russian Parliament is considering a nationwide ban on “homosexual propaganda.”