From Child Protection to Children’s Rights: Rethinking Homosexual Propaganda Bans in Human Rights Law
On June 29, 2013, Russian President Vladimir Putin signed into law a bill prohibiting “propaganda of non-traditional sexual relations among minors,” including supportive statements about gay, lesbian, bisexual, and transgender persons.1 The legislation, which included fines of up to one million roubles (equivalent to roughly $31,000 at the time of passage) and possible jail time for offenders, sailed through the Duma on a vote of 436-0 and the Federation Council on a vote of 137-0, with roughly eighty-eight percent of respondents voicing support for the bill in public polling.2
The outcry from human rights activists was swift. Some groups staged disruptive protests,3 while others used the fast-approaching Sochi Olympics to invite pressure from supranational bodies, governments, corporations, and civil society, directed toward urging Russia to repeal the law.4 Graeme Reid, the director of the LGBT Program at Human Rights Watch, called the legislation “regressive and discriminatory,” echoing condemnation from the European Union, the Council of Europe, and the Venice Commission.5
Russia’s law sought to restrict gay advocacy in the name of child protection—an effort with a longstanding historical pedigree and contemporary resonance. Laws like the one in Russia are “child-protective” not because of their actual empirical effects, but because their proponents deploy the protection of children, whether rhetorically or out of genuine concern, as a central justification for the laws’ existence. Some of the first efforts to restrict gay advocacy in the name of child protection arose in the United States and United Kingdom,6 and many of these laws remain on the books.7 These kinds of laws have been met with hearty approval in a range of other sociopolitical contexts globally; Russia’s law was passed amidst a recent surge of proposed child-protective propaganda laws in sub-Saharan Africa and across Eastern Europe.8
By the time Russia’s federal legislation drew the ire of activists around the globe, nearly identical laws had already been passed across Russia, and lawmakers stated that they were necessary to protect minors.9 As President Putin objected to the Associated Press:
[W]e have no laws against people with non-traditional sexual orientation. . . . [Y]ou kind of create an illusion among millions of spectators that we do have such laws, but we do not have such laws in Russia. Russia has adopted the law banning propaganda of non-traditional sexual relations among minors, but these are completely different things.10
Activists dismissed this distinction, arguing that protecting children is a flimsy justification to crack down on LGBT individuals.11 Yet the tension between these competing understandings of Russia’s law is not new, and it persistently haunts sexual rights efforts globally. Recent decisions by supranational bodies have done little to relieve this tension, in part because they have failed to grasp the most central interests at stake when child-protective laws are introduced: the rights of children themselves.
In this Comment, I argue that a stronger emphasis on children’s rights illustrates why supranational human rights bodies should consider child-protective restrictions on sexual rights presumptively invalid. In Part I, I chart the way in which the idea of a tension between protecting children and respecting sexual rights became firmly entrenched in human rights jurisprudence. In Part II, I look at recent decisions by the U.N. Human Rights Committee (HRC)12 and the European Court of Human Rights (ECtHR)13 that attempt to navigate this tension. Finally, in Part III, I argue that adjudicatory bodies have overlooked the already-recognized rights of children themselves—rights that tip the balance in favor of sexual rights claimants. In light of contemporary children’s rights guarantees, states and supranational bodies should discard an approach that pits the interests of children against the rights of LGBT adults in favor of a more holistic assessment of the rights at stake. Such an assessment makes apparent that child-protective restrictions on sexual rights cannot withstand scrutiny by any institution that takes seriously contemporary human rights guarantees.
I. state assertions of child-protective rationales
Proponents of laws restricting LGBT advocacy have used child-protective rationales before, insisting that the moral and physical development of minors requires careful circumscription of discussions of homosexuality and gender nonconformity. Opponents have portrayed these laws as thinly veiled assaults on LGBT rights,14 but child-protective arguments in fact had meaningful support in human rights jurisprudence of the 1970s and 1980s. The initial challenges to child-protective laws established the principle that states enjoy some discretion in fulfilling their human rights commitments in particular areas, including morality, and the repercussions of these arguments resonate in the present day.
One of the earliest and most doctrinally important cases on the protection of children’s morals was Handyside v. United Kingdom, decided by the ECtHR in 1976.15 In Handyside, the Court considered the legality of the United Kingdom’s seizure of a book intended for schoolchildren, parts of which spoke frankly and openly about homosexuality, sex, and drug use. The ECtHR ultimately deferred to the United Kingdom’s regulatory powers in the realm of morality. Notably, it began by finding that the aim of the judgment and the initial seizures of the book—that is, “the protection of the morals of the young”—was legitimate.16 The Court then determined that the measures used were sufficiently “necessary” to pursue that aim, and it ultimately concluded that no violation of the European Convention had taken place.17
The result in Handyside was not an aberration. Just six years later, the HRC reached a similar conclusion in Hertzberg v. Finland.18The complainants in Hertzberg had produced or appeared in television or radio programs related to homosexuality—programs that were censored by the state-controlled Finnish Broadcasting Company.19 In its ruling, the HRC noted that
public morals differ widely. There is no universally applicable common standard. Consequently, in this respect, a certain margin of discretion must be accorded to the responsible national authorities.
The Committee finds that it cannot question the decision of the responsible organs of the Finnish Broadcasting Corporation that radio and TV are not the appropriate forums to discuss issues related to homosexuality, as far as a programme could be judged as encouraging homosexual behaviour. . . . In particular, harmful effects on minors cannot be excluded.20
In Hertzberg and Handyside, then, influential human rights bodies recognized that states have an interest in protecting children and determined that this interest in child protection outweighed the expressive rights of adults with regard to public information about sex and sexuality. In the 1970s and 1980s, child-protective rationales for restrictions on LGBT advocacy were not simply plausible, but decisive as a matter of human rights doctrine. Both decisions suggested supranational bodies were prepared to give wide latitude to states where issues of moral—which usually meant sexual—regulation were concerned.
When Handyside and Hertzberg were decided, sexual rights were virtually unrecognized as a category of human rights law. Today, women’s rights and LGBT rights claims have gained ground at the domestic level and also have been increasingly recognized by supranational bodies.21 In Dudgeon v. United Kingdom, decided in 1981, the ECtHR ruled that Northern Ireland’s sodomy law violated the European Convention’s guarantee of privacy.22 The Court’s analysis in Dudgeon was echoed in 1988, when the ECtHR struck down a sodomy law on similar grounds in Norris v. Ireland.23 The HRC confronted its own sodomy law challenge in 1994, ultimately ruling in Toonen v. Australia that Tasmania’s sodomy law was an invasion of privacy.24 Each of these decisions established that LGBT individuals had some rights that could not be infringed in the name of an alleged public good.
It is sometimes assumed that later sexual rights decisions implicitly repudiated Handyside and Hertzberg, by virtue of removing morality from the sole purview of states and exposing it to supranational scrutiny.25 Yet the “margin of appreciation”—Handyside’s term for the degree of discretion that states enjoy in fulfilling their obligations under the European Convention, particularly on issues of morality, national security, and public order26—remains a tenet of supranational human rights jurisprudence. Handyside continues to be cited by the ECtHR,27 and the issues Handyside and Hertzberg decided are in many ways broader than the narrow sodomy law question posed by Toonen, Dudgeon, and Norris. Recent decisions on child-protective laws, which I discuss below, have underscored the unresolved questions in these lines of canonical human rights cases. Collectively, the cases establish a strong right to sexual privacy, but they potentially leave states a wide berth to regulate public expressions of sexuality, particularly when children may witness them.28 Under this interpretive synthesis, the proper balance between child protection and the rights of LGBT individuals remains an open question.
II. balancing child-protective rationales and sexual rights
Although various European organs have spoken out against the passage of Russia’s federal propaganda law, neither the ECtHR nor the HRC has yet ruled on its legality. The bodies have, however, addressed other regional and municipal child-protective laws, also passed in Russia. These decisions—Alekseyev v. Russia and Fedotova v. Russian Federation—offer reasons why propaganda laws may violate human rights guarantees, and therefore may be indicative of how the ECtHR and the HRC might approach Russia’s recent federal legislation. Both cases suggest supranational bodies rely too heavily on the presentation of empirical proof, and illustrate the importance of a more holistic analysis.
In Alekseyev v. Russia, the ECtHR considered a claim that banning LGBT parades in Moscow infringed upon Article 11 of the European Convention.29 Russian officials claimed they were worried about both public order and public morality.30 The state argued that LGBT parades should be understood as public displays of sexuality to which children and other unwilling viewers might be exposed.31 The ECtHR disagreed. It stressed that “the participants had not intended to exhibit nudity, engage in sexually provocative behaviour or criticise public morals or religious views.”32 On that basis, the Court distinguished the case from precedents like Müller v. Switzerland, where the display of obscene artwork justified restrictions of expression, in part because the artwork would be visible to the public without any age limit.33 The Court then explained that while European countries had not reached a consensus on all substantive questions of LGBT equality—for example, same-sex marriage and adoption—there was a consensus that LGBT persons enjoyed freedom of peaceful assembly. Such a consensus narrowed the margin of appreciation afforded to Russia and justified supranational review.34
Having made these findings, the Court reiterated “that any decision restricting the exercise of freedom of assembly must be based on an acceptable assessment of the relevant facts.”35 The Court emphasized that the state had failed to provide actual evidence that mentioning or debating homosexuality or the status of LGBT people would adversely affect children.36 Without proof that the restriction at hand was necessary to protect youth, the Court determined “the authorities’ decisions to ban the events in question were not based on an acceptable assessment of the relevant facts.”37 The Court therefore concluded the bans had violated Alekseyev’s freedom of assembly under the European Convention.38 Although the Court invalidated a ban on assertions of LGBT rights in the public sphere, it did so primarily because the government had failed to provide sufficient evidence, and not because such bans inherently violate human rights.
Shortly after Alekseyev, the HRC confronted the regional law prohibiting homosexual propaganda in the Russian oblast of Ryazan. In Fedotova v. Russian Federation, the claimant had been convicted by a court in Russia for exhibiting posters that said “Homosexuality is normal” and “I am proud of my homosexuality” near a secondary school, and was fined 1,500 roubles.39 The HRC found the law contravened the International Covenant on Civil and Political Rights, concluding that Russia had failed to show that restricting propaganda regarding homosexuality, but not heterosexuality or sexuality generally, was the product of “reasonable and objective” criteria.40 Like Alekseyev’s demand for more evidence that LGBT advocacy hurt children, the ruling in Fedotova was equivocal.The decision “recognize[d] the role of the State party’s authorities in protecting the welfare of minors” and suggested that a determination of necessity should be made based on the facts of the case.41 Like the ECtHR, the HRC observed in its reasoning “that the State party has not shown that a restriction on the right to freedom of expression in relation to ‘propaganda of homosexuality’—as opposed to propaganda of heterosexuality or sexuality generally—among minors is based on reasonable and objective criteria.”42 The HRC did not articulate what kind of distinctions it would consider sufficiently “objective” or “reasonable” to validate bans on LGBT advocacy. Nor did it indicate why a ban on all public discussions of sexuality, however even-handed and nondiscriminatory, would still violate fundamental human rights guarantees.
Although Fedotova reflects skepticism toward the kinds of laws that have now been federally instituted in Russia, it does not provide an especially rigorous account of why these laws might be invalid, particularly in light of precedents like Hertzberg and Handyside. The HRC pointedly suggested that Fedotova “ha[d] not made any public actions aimed at involving minors in any particular sexual activity or at advocating any particular sexual orientation,” laying to rest any fears of seduction or recruitment.43 The Committee determined she was merely “giving expression to her sexual identity and seeking understanding for it.”44 The HRC affirmed the state’s interest in protecting minors, but ultimately found it was not strong enough, in this particular case, to deny Fedotova her own freedom of expression. Like Alekseyev, Fedotova deemed restrictions on advocacy invalid, but did so on fairly tentative grounds.
III. centering children’s rights in debates over child-protective laws
Alekseyev and Fedotova invalidated restrictions on LGBT advocacy, but neither case fully explains why such restrictions inherently violate human rights. Decades after Handyside, Hertzberg, Dudgeon, Norris, and Toonen, these decisions do little to define the relationship between the state’s interest in protecting children and the human rights of LGBT persons. As child-protective rationales enjoy a resurgence in Eastern Europe and sub-Saharan Africa, a more holistic assessment is needed to define the human rights at stake in these debates.
The debate over child-protective laws and sexual rights tends to pit the power of the state against the individual rights of LGBT persons. Few advocates—on either side—have foregrounded the rights of children, which are codified domestically in constitutions and statutes and enshrined internationally in supranational agreements like the Convention on the Rights of the Child (CRC).45 In Alekseyev and Fedotova, for example, the state’s interest in protecting children was simply weighed against the rights of LGBT individuals, and the rights of the child were not asserted or discussed at any length.46 As I argue in this Part, however, propaganda laws infringe the established rights of children, and recognizing this fact illuminates why they should be treated as presumptively invalid under human rights law.
The growth of children’s rights jurisprudence has accelerated dramatically since the 1970s, in parallel with the emergence of sexual rights. Children now enjoy widely recognized rights that courts have imbued with increasingly detailed meaning and content. When the new homosexual propaganda laws begin to reach the ECtHR and HRC, these rights should be included in the analysis of the rights that are infringed when the state purports to protect children.
Under the CRC, children enjoy a right to freedom of expression, including the right to “receive and impart information and ideas of all kinds,” enshrined in Article 13,47 as well as a related right of “access to information,” enshrined in Article 17.48 Both rights create a presumption that the state should not shield children from information without a strong justification for doing so. The conditions for overriding this presumption are narrow and specific. Article 13(2)(b) allows the child’s right to expression to be curtailed when this is necessary to protect public morals,49 while Article 17(e) specifies that states should protect each child “from information and material injurious to his or her well-being.”50
The heart of the debate over child-protective laws, in many ways, revolves around the extent to which states have latitude to define “public morals” and “well-being” in this context. As Toonen, Dudgeon, and Norris all demonstrate, supranational bodies have declined to give states free rein to police the sexual morality of relationships between consenting adults.51These bodies have not, however, defined the permissible scope of morals legislation targeted at children. In contrast, the Committee on the Rights of the Child has fleshed out the concept of harmful information through its practice over time. It has defined harmful information through examples, like “pornographic materials and materials that portray or reinforce violence, discrimination and sexualized images of children,”52 and “pornographic material and material that promotes xenophobia or any other form of discrimination and could potentially reinforce prejudices.”53 The Committee’s emphasis on discrimination, pornography, and violence reflects the concerns of Article 17(e)’s drafters, who sought to shield children from the promulgation of “apartheid, racist theories and ideologies and the like,”54 and not to suppress age-appropriate information about sex education, discussions of pregnancy and HIV/AIDS, and LGBT advocacy.55
If individual rights are to have meaning, states should not be permitted to define standards such as “morality” and “harmful information” as they see fit. Rather, supranational bodies should hold states accountable after surveying the degree of consensus among states and reasoning from first principles of necessity, democracy, and proportionality. As I discuss below, international bodies increasingly acknowledge that the right to information about sexuality, including homosexuality, is a critical part of children’s right to information. In addition, advocates have widely endorsed the imposition of procedural standards in defining morality and harmful information, such as requiring transparency, participation of children themselves, participation of NGO networks, and a role for supranational bodies.56Both developments undermine state assertions that it is their prerogative to label information about sexuality “harmful” for children.
Indeed, children’s right to receive and impart information related to sexuality has been endorsed by the authoritative supranational body working on children’s rights.57 In General Comment 4 on Adolescent Health and Development, the Committee on the Rights of the Child clarified:
It is the obligation of States parties to ensure that all adolescent girls and boys, both in and out of school, are provided with, and not denied, accurate and appropriate information on how to protect their health and development and practise healthy behaviours. This should include information on the use and abuse, of tobacco, alcohol and other substances, safe and respectful social and sexual behaviours, diet and physical activity.58
In General Comment 12, the Committee reiterated that the right to information is a prerequisite to the exercise of the right to be heard, and that such information is conveyed in large part through the media.59 When a state bars public discussion of homosexuality in the media, it bars children from exercising both their right to information and their right to be heard.
Laws prohibiting homosexual propaganda violate not only children’s rights to impart and receive information, but also potentially the right to education under the CRC.60General Comment 3 extends to the realm of education, requiring that “States parties must ensure that children have the ability to acquire the knowledge and skills to protect themselves and others as they begin to express their sexuality.”61 U.N. Special Rapporteur on the Right to Education Vernor Muñoz has opposed homosexual propaganda laws on this ground, emphasizing in particular that children have a right to access sexual and reproductive education.62 Violations of the rights to information and education are particularly acute for LGBT children, who are largely absent from legislative debates but bear the brunt of laws that prevent any discussion of LGBT sexuality.
The right to education is of crucial importance in light of HIV/AIDS and sexual health concerns, especially for young gay men and transgender people. As the Committee on the Rights of the Child’s General Comment 3 on HIV/AIDS and the Rights of the Child notes:
State obligation to realize the right to life, survival and development also highlights the need to give careful attention to sexuality as well as to the behaviours and lifestyles of children, even if they do not conform with what society determines to be acceptable under prevailing cultural norms for a particular age group. . . . Effective prevention programmes are only those that acknowledge the realities of the lives of adolescents, while addressing sexuality by ensuring equal access to appropriate information, life skills, and to preventive measures.63
If protecting children is understood to require the protection of all children, including LGBT children, then frank and open discussion about homosexuality, sexual health, and LGBT rights is recast as an asset rather than a liability.64
When children’s rights are factored into evaluations of child-protective laws, the rights-restricting effects of these initiatives are even more apparent. Proponents of these laws argue that, although the laws may limit the rights of LGBT persons, they are justified because they safeguard the interests of children. Opponents reject this argument and insist that child-protective laws’ dubious impact on the morality of children is grossly outweighed by the dramatic and immediate constraints that these laws place on the rights of LGBT persons. The calculus shifts considerably, however, if we recognize that children’s rights to expression, information, and education are imperiled when LGBT issues cannot be discussed publicly.65 Laws prohibiting gay propaganda hamper the rights of not only LGBT persons, but also of children themselves. By recognizing that fact, it becomes evident that such laws do not really protect children at all.
The idea of a tension between protecting children and recognizing sexual rights in the public sphere has produced explosive conflicts in domestic and transnational legal systems—and yet, amid conflicting precedents from the late 1970s onward, supranational bodies have not articulated an overarching principle to resolve these competing assertions of rights. The emergence of Russia’s law offers a unique opportunity for human rights defenders to articulate the proper relationship between the state’s interest in protecting children and the human rights of LGBT persons. When children’s rights are added to the balance alongside the state’s interest in child protection and the rights of LGBT persons, the analysis changes. The state’s avowed interest in protecting children is weakened by the recognition that children’s rights are infringed in the process.
As child-protective laws proliferate, both sides will likely make common-sense appeals to the protection of children and the protection of rights, each of which has firm foundations in human rights jurisprudence. To avoid talking past each other, activists and legislators must turn to frameworks that can systematically synthesize and balance these competing views. A holistic analysis that takes the good-faith views of all parties seriously can affirm that the state has a genuine interest, and perhaps good intentions, in its efforts to protect children. At the same time, such an approach gives credence to more recent developments in sexual rights and children’s rights law, which make clear that such efforts can be severely rights-restricting for children as well as LGBT persons. Taking the wider repercussions of these laws into account underscores the point that child-protective bans on LGBT advocacy are a counterproductive and impermissible means to achieve child-protective ends.