Article 19, EU: Sustained pressure needed against "homosexual propaganda" bans, 7 June 2013, available at: http://www.refworld.org/docid/51b979654.html [accessed 8 December 2016]
This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.
ARTICLE 19 calls on the European Union (EU) to maintain pressure on countries that have adopted or are considering bans on so-called "homosexual propaganda". This follows our discussions at the European Parliament last week with MEPs and civil society representatives from across Europe. ARTICLE 19 presented its report Traditional Values? Censoring Sexuality, available in English, Russian and French, which comprehensively sets out why bans on "homosexual propaganda" violate international human rights law. At the European Parliament we reiterated our serious concerns at:
The proliferation of bans on "homosexual propaganda" across Eastern and Central Europe in recent years
The alarming international trend to criminalise the work of human rights defenders and severely limit available civic spaces where dissent can be freely expressed.
It is crucial that the EU addresses violations of the freedom of expression rights of lesbian, gay, bisexual and transgender (LGBT) people within all EU member states, in particular Lithuania, which is to assume Presidency of the EU Council on 1 July. If not, the EU will lack credibility when promoting and protecting fundamental human rights internationally.
Michael Cashman, MEP and Co-President of the European Parliament Intergroup on LGBT Rights, who chaired the event, said: "It was an inspiring and invaluable opportunity to share knowledge and information on how to achieve legal equality and freedom from discrimination, especially in Russia, Lithuania, Ukraine and Moldova, and what the EU's role in this should be. ARTICLE 19's assessment and input greatly contributed to an extremely successful event."
ARTICLE 19 appreciates the considerable support that the MEPs and Stavros Lambrinidis, the EU Special Representative on Human Rights, showed for LGBT human rights defenders in parts of Europe as well as many other parts of the world. We welcome the MEPs' and the Special Representative's support for promoting and protecting the freedom of expression rights of all people worldwide.
ARTICLE 19 considers bans on "homosexual propaganda" to be a direct attempt to censor LGBT people. International and regional human rights courts have categorically and comprehensively rejected attempts to justify these bans on the basis of protecting public morals or the rights of children. These bans stigmatise LGBT people, exclude them from public debates and legitimise violence and discrimination against them. They create a climate of self-censorship that deprives all people of access to vital information and ideas, including in areas of critical importance such as health and education.
During the meeting at the European Parliament, participants explained that issues in a number of countries, including Lithuania, Russia, and Ukraine, require urgent action from the EU.
This statement sets out in detail the concerns raised at the meeting and concludes with recommendations to the EU about combatting "homosexual propaganda" bans.
Lithuania: EU must get its own house in order
ARTICLE 19 is gravely concerned that Lithuania has adopted legislation to stifle the free expression rights of LGBT people and is now considering further measures. Not only is Lithuania an EU member state but it is also set to assume the Presidency of the EU Council on 1 July 2013.
In December 2009, the Lithuanian Parliament adopted a law on "protection of minors against the detrimental effect of public information", which prohibits the dissemination of information that "expresses contempt for family values, encourages the concept of entry into marriage and creation of a family other than that stipulated in the Constitution of the Republic of Lithuania and the Civil Code."
The Lithuanian Parliament did succumb to international pressure to remove explicit references to "propagandising homosexuality" in this law. However, the wording of the law remains ambiguous and raises the same human rights concerns as propaganda bans in Russia and other countries. Although the law is yet to be enforced or its constitutionality tested in the courts, it is clear that it is formulated to intimidate and stigmatise LGBT people and their families.
ARTICLE 19 is also concerned by recent attempts to amend the Code of Administrative Offences in Lithuania. In May 2013, the Lithuanian Parliament approved at the first reading amendments to the Code of Administrative Offences to prohibit the "public denigration of constitutional moral values and the principles of family enshrined in the Constitution and the organisation of events contradicting social morality."
These amendments follow a pattern of amendments proposed in 2010 and 2011, which originally included language banning the "public promotion of homosexual relations". It is likely that the Lithuanian Parliament's Human Rights Committee will reject or stall the law. However, the repeated introduction of such measures for parliamentary debate substantially contributes to an environment where the stigmatisation of LGBT people and discrimination against them is legitimised.
Both the 2009 law and the recently proposed amendments to the Code of Administrative Offences clearly violate international and European standards on freedom of expression and non-discrimination, including Article 6 of the Treaty on European Union.
As Lithuania prepares to take up the Presidency of the EU Council, it must be forced to account for and remedy these violations or again face the prospect of legal action by the EU Commission. Maintaining internal coherence on the freedom of expression rights of LGBT people is essential if the EU is to remain credible when advocating outside the EU for equality in human rights protection.
Russia: Survival of all independent civil society is in immediate danger
ARTICLE 19 continues to be concerned about the situation in Russia where, since 2009, ten regional or city authorities have banned "homosexual propaganda". In the coming months, Russia looks likely to adopt a federal ban of "homosexual propaganda" which is due to have its second reading in the State Duma. Overwhelming support for the first reading of this proposed ban has indicated that the bill will almost certainly pass into law.
The regional bans have only been formally enforced on a small number of occasions. Despite this, Russian human rights defenders have indicated that the bans' impact has been profound, marginalising and stigmatising LGBT people.
At the meeting, examples of increased violence and discrimination were described, including:
increased numbers of bias-motivated crimes, including two murders;
denials of authorisation requests for public assemblies;
failures by police to protect LGBT demonstrators from violent counter-demonstrations.
The cumulatively chilling effect of these incidents on the exercise of the right to freedom of expression in Russia is likely to be very serious and felt for a long time.
In addition to these concerns, participants including ARTICLE 19 stressed that "homosexual propaganda" bans must be understood within their broader domestic context. Since Vladimir Putin returned to the Presidency in 2012, a raft of legislative measures have been adopted. Their aim is the systematic isolation and dismantling of all independent civil society groups and the silencing of all opposition voices. This means that there are a number of laws which present a far more imminent threat to the survival of these groups:
Law on Meetings, Rallies, Demonstrations, Processions and Pickets (June 2012), provides for administrative fines of up to RUB 300,000 (USD 9,500) and includes vague terminology to target new forms of protest, such as flash mobs and mass protest walks.
Non-Commercial Organisations Law (Foreign Agents Law) (July 2012), requires non-commercial organisations that receive foreign funding to officially declare themselves as "foreign agents". These organisations are also subject to additional audit and reporting requirements with strict limitations on "political activities", broadly defined as attempts to influence government institutions and public opinion.
Labelling of domestic civil society organisations as "foreign agents" has a significant and stigmatising effect, as this label was used during the Soviet-era to describe foreign spies. The label isolates organisations and removes them from the domestic political debates.
The sanctions that may be imposed under this law, which include excessive fines and imprisonment for executive directors, are potentially fatal to most civil society organisations. Numerous organisations have already been investigated under this law, leading to: intrusive raids on offices; confiscation of computer hardware, and the intimidation of the human rights defenders working at those organisations.
Other laws and reforms have added to the chilling environment for the free expression of dissent including: laws which protect the "religious feelings of believers"; broad reforms to legislation on treason, and the reintroduction of defamation to the criminal code.
All of these laws show a complete disregard for international and European standards on the right to freedom of expression and freedom of information. They have also been enacted with disturbing haste, without adequate time for consultation with independent experts or civil society.
"Homosexual propaganda" bans must therefore be understood not only as being deeply problematic in their own right. They also help create a prejudicial environment in which LGBT groups can more easily be marginalised and targeted for punishment through alternative sanctions. Condemnation of this broader raft of legislation is therefore required as part of any action to defend the freedom of expression rights of LGBT people in the country.
Ukraine: Serious concerns at continued support for anti-LGBT legislation
ARTICLE 19 remains concerned at cross-party support within the Ukrainian Parliament for proposed legislation seeking to criminalise the propaganda of homosexuality, with sanctions including extensive fines and prison sentences. The legislation flatly contradicts commitments made by President Viktor Yanukovich in January 2012 requiring Ukraine to comply with Council of Europe recommendations prohibiting discrimination on the ground of sexual orientation and gender identity.
Two "homosexual propaganda" bans have been proposed in Ukraine in recent years. Bill 0945 (previously Bill 8711) proposes to amend existing laws to criminalise the import, production and distribution of products that "promote" homosexuality. This Bill passed its first reading on 2 October 2012 but has since been stalled, particularly following concerns about the lack of definition for what constitutes "promoting" homosexuality. These deficiencies have largely been addressed by Bill 1155, which was proposed in December 2012, and adopts a much more specific definition of "propaganda" of homosexuality. The definition encompasses the dissemination of any positive information about homosexuality disseminated through meetings, demonstrations, parades, and education materials. Bill 1155 is still awaiting its first reading but has broad cross-party support.
Although Bill 1155 may partially address deficiencies of earlier drafts in terms of legal certainty, it still fails to comply with international standards on freedom of expression. Article 19(3) of the International Covenant on Civil and Political Rights requires that in addition to being "provided by law", restrictions on freedom of expression must also pursue a legitimate aim and be necessary and proportionate to that aim. Even a cursory analysis of Bill 1155 reveals that it does not respond to a pressing social need and is diametrically opposed to principles of democracy and non-discrimination.
In addition to concerns about the "homosexual propaganda" bans in Ukraine, domestic resistance to the inclusion of sexual orientation in anti-discrimination legislation in the field of employment (Bill 2342) has reportedly added to an environment in which homophobia and transphobia are legitimised. The Svoboda party has even proposed an alternative bill explicitly excluding LGBT people from the protective scope of the law.
In May 2013, the EU made clear to Ukraine that the passage of anti-discrimination legislation that includes sexual orientation is a condition for the completion of the first phase of the EU-Ukraine action plan on visa liberalisation. However, activists on the ground report that many politicians refuse to acknowledge the incompatibility between an inclusive anti-discrimination law and the passage of Bill 1155.
UN Human Rights Council: "Traditional values" subverting the international human rights framework
ARTICLE 19 raised with the European Parliament its concerns at efforts made by Russia at the UN Human Rights Council (HRC) to call for recognition of "traditional values" as a vehicle for the promotion of human rights. Russia has successfully tabled three resolutions at the HRC since 2009, most recently in October 2012. We consider this to be part of a broad agenda by Russia to subvert the international human rights system, and to distract the HRC from its mandate of protecting and promoting human rights.
The resolutions tabled by Russia fail to advance a definition for "traditional values", which is a vague concept alien to the human rights framework. Rather than support the promotion or protection of human rights, concepts such as "traditional values" have often been invoked to justify abuses against the rights of vulnerable minorities including LGBT people. These resolutions fail to acknowledge this fact, exposing the insidious agenda behind their attempts to seek recognition for the concept in the international human rights framework.
ARTICLE 19 believes that the rights contained within the Universal Declaration of Human Rights represent a coherent and universally agreed-upon framework for protecting the rights of all human beings. Traditions contrary to these standards must be modified or, if necessary, eliminated.
It is clear that Russia will not confine its "traditional values" agenda to the UN at Geneva or in New York. It is therefore important that the EU is aware of this attempt by Russia to qualify its human rights commitments in a vague manner and that the EU stands in firm opposition to this. The EU must act decisively and robustly to ensure that the negative trends are reversed.
At the same time, the EU and its member states must robustly support initiatives to promote equality on the basis of sexual orientation and gender identity on the international stage. The EU should firmly encourage the HRC to follow up its landmark resolution 17/19 of 2011 on human rights, sexual orientation and gender identity. This led to a ground breaking OHCHR report on the issue. Given the developments highlighted above, it is clear that keeping the rights of LGBT people on the international agenda is as important now as ever before.
Conclusion – our recommendations
ARTICLE 19 calls upon the EU to robustly defend the fundamental human rights of LGBT people to freedom of expression and non-discrimination. This should include the following actions:
The European Commission must study Lithuania's 2010 Law on the Protection of Minors against the Detrimental Effect of Public Information and the proposed 2013 amendments to the administrative code of offences for their compliance with fundamental human rights protections. If necessary, the Commission should institute legal proceedings under Article 7 of the Treaty on European Union.
The European Parliament must follow up on Resolution P7_TA(2012)0222 of 24 May 2012 "on the fight against homophobia in Europe", which categorically condemned the rise in "homosexual propaganda" bans. Follow-up resolutions must acknowledge the negative developments in Lithuania, Russia and Ukraine and place them in their broader context as outlined above.
The European Commission and Council must emphasise to Ukraine that the adoption of any "homosexual propaganda" ban would be entirely incompatible with commitments the country has made to introduce anti-discrimination measures under the action plan on visa liberalisation.
The EU must categorically reject attempts by Russia to treat universal human rights as being conditional to the vague concept of "traditional values". It must also emphasise States' obligation to eliminate or modify traditional practices that violate international human rights protections.
The European Commission must ensure that discrimination on the basis of sexual orientation is prohibited in all sectors by completing the anti-discrimination package based on Article 19 of the Treaty on the Functioning of the European Union.
The implementation of the opinions contained in the EU Agency for Fundamental Rights' report "Homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity"
The European Commission must carefully examine and use the future findings of the European LGBT Survey carried out by the Agency for Fundamental Rights.
The European Commission must finalise and issue a comprehensive roadmap to equality without discrimination on grounds of sexual orientation or gender identity. This should include coordinating initiatives and setting a timescale for progress.
The Vice-President of the European Commission must systematically raise concerns regarding restrictions on the rights of freedom of expression and peaceful assembly of LGBT people.
- See more at: http://www.article19.org/resources.php/resource/37097/en/eu:-sustained-pressure-needed-against-%E2%80%9Chomosexual-propaganda%E2%80%9D-bans#sthash.KCXmZHar.dpuf