Human Rights Centre submits a third party intervention in case concerning the right to family life of transgender parents and their children

Judith Vermeulen is a doctoral researcher and a member of the Law & Technology research group, the Human Rights Centre and PIXELS at Ghent University.

The Human Rights Centre of Ghent University (Belgium)[1] submitted a third party intervention (TPI) before the European Court of Human Rights in the communicated case of A.M. and Others v. Russia. The issue is the restriction of a trans woman’s parental rights in view of her gender identity. In our submission, we argue that this case raises important issues under the right to respect for family life (Article 8 ECHR), taken alone and in conjunction with the prohibition of discrimination (Article 14 ECHR), providing the Court with an important opportunity to clarify the standards in the area of human rights protection of trans persons and children. An overview of the facts as well as a summary regarding our main arguments are provided hereunder.

Facts

There are three Applicants in this case. Mid-2008, the first Applicant, whose gender, at that time, had been officially recorded as ‘male’, married Ms N. The first Applicant and Ms N. had two children, the second and the third Applicants, who were born in 2009 and 2012 respectively. The first Applicant divorced from Ms N. in June 2015, both agreeing that the children would stay with N. The first Applicant, in addition, consented to paying monthly maintenance allowances.

About a month later, on July 31th, 2015, the Lyublinskiy District Court of Moscow legally recognised the first Applicant’ gender transition from ‘male’ to ‘female’. Her registered name is now Ms A.M. The first Applicant was allowed to visit the second and third Applicants if she presented and dressed as a man, as this was in accordance with the wishes of her former spouse. However, since December 2016, Ms N. started refusing those visits. Following a complaint by the first Applicant regarding this refusal, Ms N. was interviewed by social services to which she declared that, in her opinion, the moments of contact caused the children, being underage, psychological harm.

On 9 January 2017, Ms N. initiated judicial proceedings seeking the restriction of the first Applicant’s parental rights. In particular, she submitted that the latter was diagnosed with ‘transsexualism’, a mental health disorder, and that, since the transition, contacts between A.M. and the children had been rare. In the opinion of N., these developments 1) caused irreparable harm to the mental health and morals of the children, 2) could distort their perception of family, 3) could lead to inferiority complex and bullying at school, and 4) could expose them to information on ‘non-traditional sexual relations’, while that information was prohibited, in Russia, from distribution to minors.

In reply, the first Applicant argued that under domestic law, parental rights may only be restricted if the parent concerned resides together with a child and puts it in danger. Bearing in mind the forensic, sexological and psychological assessment concerning all three Applicants it had ordered, the District Court, in spite of the submission by the Applicant of an alternative expert report, adopted a judgment restricting the first Applicant’s parental rights in March 2018. In particular, the court found that

‘by itself [Ms A.M.’s] disorder – transsexualism – is not a ground for [doing so], but the resulting changes to [her] personality and the disclosure of information on [the father’s gender transition] will create long-term psycho-traumatic circumstances for the children and induce negative effects on their mental health and psychological development”. It further held that “[a]s the children grow older and the level of their mental development changes the issue of contact between [Ms A.M.] and the children should be re-examined and visitation rights reconsidered in the manner affording gradual adjustment of the children to the gender transition of the father, while preserving their psychological and mental balance’.

A.M.’s subsequent appeals were dismissed. In Strasbourg, all three Applicants complain that the restriction of the first Applicant’s parental rights in respect of the second and the third Applicants has not been necessary in a democratic society and, therefore, violated their right to respect of family life. The first Applicant further complains under Article 14 in conjunction with Article 8 of the Convention that the restriction of her parental rights has been discriminatory, since her gender identity served as a sole ground for that restriction.

TPI Arguments

Our third party intervention first focuses on the context regarding the human rights of trans persons. In particular, the Court is invited to put three issues high on its agenda: avoiding the trap of pathologisation, rejecting stereotyping, and taking into account the vulnerability of the circumstances in which these individuals find themselves.

As regards the first, the TPI demonstrates that there is a clear and uncontested international trend towards the full depathologisation of trans persons in law and society. To consider their situation as a disease is, more specifically, regarded to be disrespectful of human dignity and an obstacle to both social inclusion as well as the full enjoyment of human rights. The ECtHR should take this shift in the international community’s perspective of trans people into account when addressing measures taken by Contracting Parties that interfere with the Convention rights of transgender people, particularly when those reflect a stereotyped, medicalised approach towards trans experiences. Indeed, as the Court has already recognised that the representation as a stereotype of a certain group in society prohibits the individualisation of its member’s capacity and needs (e.g. Alajos Kiss. v. Hungary), the generalised negative stereotyping of trans persons in terms of pathologisation will often hinder a proper adjudication of rights.

In addition, our submission proposes the application of the concept of vulnerable groups – already used in relation to Roma (D.H. and others v. Czech Republic), people with disabilities (Alajos Kiss v. Hungary), people living with HIV (Kiyutin v. Russia) and asylum seekers (M.S.S. v. Belgium and Greece) – to trans persons, since they have been suffering considerable transphobia, i.e. discrimination, stigmatisation and stereotyping on the basis of their gender identity in Europe. In line with the Court’s case law (Alajos Kiss v. Hungary), such a finding entails a substantially narrower margin of appreciation for the State, requiring it to have very weighty reason for restricting the fundamental rights of the people concerned.

The second section, elaborates on the interpretation of Article 8 ECHR, while the third and final one, concerns Article 14 ECHR jointly with Article 8 ECHR. Both sections adopt a children’s rights perspective intersecting with a trans rights perspective.

As regards Article 8, taken alone, our intervention revolves around the right to family life of parents as well as children. Citing settled case law of the ECtHR, the TPI stresses that mutual enjoyment between parent and child of each other’s company is a fundamental element of family life (Elsholz v. Germany). It goes on to highlight that, according to the Court itself, the best interests of the child generally dictate that family ties are maintained, except in cases where the family has proven particularly unfit (Kacper Nowakowski v. Poland) and this may harm the child’s health and development (K.B. and others v. Croatia).

In that context, it is, first of all, important to avoid a one-sided assessment of harm, by focusing only on the potential harm that could be caused by contact with a parent, while obscuring the harm that could be caused by breaching such contact (Y.I. v. Russia).

Secondly, there should not be any bias in the assessment of harm in case the parent whose contact rights are under consideration, belongs to a group that is subject to discrimination, marginalisation or negative stereotyping. Importantly, several studies show that the heteronormative concern that children of trans parents may exhibit ‘atypical’ – a suggestion problematic in itself – gender behaviour, gender identity, or sexual orientation is unfounded. Moreover, it is reported that children of transgender parents do not experience difficulties in the familial relationship that are much different from those of other children. However, restriction of communication with the trans parent or keeping the gender transition secret from the child could, nonetheless, intensify any adverse emotions of loss, abandonment and betrayal the latter might feel in case of a divorce, potentially irreversibly estranging both parties.

Thirdly, when a risk of harm is detected, the State should bear a responsibility to assist families with a view to containing it. Accordingly, the Court is invited to consider what measures State authorities have taken to assist the family to mitigate any such risk, and that providing such assistance may be considered a positive obligation under the Convention (e.g. A.V. v. Slovenia).

The fourth subsection adopts the perspective of the child’s Article 8 rights. From that angle, the Court frequently refers to the child’s best interests concept. However, due to its vagueness, judicial approaches to the assessment of this concept are susceptible to bias. The ECtHR should, therefore, in assessing domestic actors’ ‘best interests’ reasoning, be alert to unpack it in case it occurs. In addition, a structured approach, consisting in the adoption of a non-exhaustive and non-hierarchical list of elements that could be included in the ‘best interests’ assessment, as proposed by the CRC Committee, may serve as a guidance for domestic actors, and help prevent bias.

Finally, a fifth concern relates to a child’s right to be heard. Whereas it has, in the context of the ECHR, already been recognised that children involved in custody proceedings do have such a right (M. and M. v. Croatia), it would be desirable to get a detailed clarification on what this requirement actually entails. In addition, the Court is asked to specify that the exercise of the child’s right to be heard presupposes that the child is properly informed, for instance on issues concerning gender identity, gender variation and sexuality. In Russia however, the law prohibiting so-called ‘propaganda of homosexuality among minors’, deprives people under 18 from access to reliable and correct information regarding sexual orientation and gender identity, also violating the right of access to information guaranteed by both UNCRC and the ECHR.

Lastly, there is a need to separately examine whether there has been a violation of the prohibition of discrimination in Article 14, taken together with Article 8 ECHR. As trans persons form a particularly vulnerable group in society, it was submitted that their rights may only be restricted on the basis of ‘very weighty reasons’ (Horváth and Kiss v. Hungary), pervasive stereotypes in law and society not qualifying as such.

First, our TPI argues that, in this case, discrimination exists because national authorities fail to treat individuals whose situations are similar – transgender persons in comparison to cisgender persons – in an equal way, solely on the basis of their gender identity, without an objective and reasonable justification. Indeed, such treatment often stems from the unsupported assumption that children with a trans parent would experience negative influences on the development of their gender identity, sexual orientation and overall well-being (infra). In particular, the Court is invited to draw a parallel with the depathologisation of homosexuality in the 1980’s and its established case law regarding the parental rights of non-heterosexual parents (Salgueiro Da Silva v. Portugal).

Secondly, there is discrimination of children with one or more trans parent(s) in comparison with children with only cisgender parents, in that similarly situated persons are treated differently without compelling justification. The relevant similarity is that both categories have a similar right to the enjoyment of both parents’ company. Moreover, children should not be discriminated on the basis of their parents’ status (e.g. Marckx v. Belgium).

Finally, the case at hand raises an issue in terms of positive obligations under Article 14 ECHR. In that regard, our submission puts forward that the State should use all available means to combat transphobia and discrimination on the basis of gender identity, and to take measures to counteract the social exclusion of vulnerable groups, including trans persons. This requires the instalment of a framework of parental contact rights based on the recognition of gender self-determination of trans parents, and the unbiased protection of children’s rights and their best interests. In addition, rather than taking harm to the child (such as bullying by peers) as a given, and mobilizing it against trans parents’ claims for contact rights, the State must act to prevent such harm by enhancing its educational and awareness raising efforts. This consideration is of course linked to the abovementioned Russian law prohibiting so-called ‘propaganda of homosexuality among minors’, which, as recognised by the Court (Bayev and Others v. Russia), reinforces stigma and prejudice and encourages homophobia, and therefore is to be considered incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society.

[1] For the Human Rights Centre the team consisted of prof. dr. Eva Brems, dr. Pieter Cannoot, Argyro Chatzinikolaou, Evelyn Merckx, Ingrida Milkaite and Judith Vermeulen.

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