November 09, 2021
By dr. Pieter Cannoot and dr. Ingrida Milkaite
On 6 July 2021 the European Court of Human Rights rendered its highly anticipated judgment in the case of A.M. and Others v. Russia, in which the Human Rights Centre submitted a third party intervention (earlier blogpost summarising our main arguments can be accessed here). The Court unanimously found a violation of Article 8 of the Convention (ECHR), as well as a violation of Article 14 taken together with Article 8. The case concerned the restriction of the applicant’s – a trans woman – parental rights and deprivation of contact with her children on grounds of her gender identity. The application raised several interesting issues concerning the parental rights of parents undergoing a gender transition, the preservation of contact between children and their trans parent, the participation of children in proceedings before the ECtHR and the extent to which children’s rights are generally taken into account in such cases. In order to give due attention to both the integral aspects of this case, it will be discussed in two separate blog posts. The present post will outline the facts of the case, and focus on the first angle: the ECtHR’s position on the rights of trans parents.
The applicant is a Russian trans woman, who is the mother of two minor children (born in 2009 and 2012). She was assigned the male sex at birth, and before starting her gender transition, had married N., who is the biological mother of the applicant’s children. The couple later divorced, with the applicant agreeing to pay a monthly allowance to the children who stayed with N. The applicant was legally recognised as a woman in 2015.
Until December 2016, the applicant regularly visited the children and spent time with them. During the visits, she presented as a man since otherwise N. would have objected. From December 2016 onwards, N. began objecting to the applicant’s visits, claiming to the social services that they caused psychological harm to the children. On 9 January 2017, N. initiated proceedings aimed at restricting the applicant’s access to the children as, according to her, A.M.’s gender transition had caused irreparable harm to the mental health and morals of the children. A.M. lodged a counterclaim, asking the courts to set rules on visiting rights and communication between the parents.
In 2017 an expert report confirmed the applicant’s diagnosis of ‘transsexualism’. It stated that:
‘given the degree of manifestation of feminine characteristics in [the applicant] and her principled inability to preserve a male appearance; the insufficient consideration by her of the age-related specificities of the children’s development; her expressed intention to communicate with the children as a ‘transgender woman’ and a ‘parent’ coupled with the provision to them of information on [the gender transition]; the low degree of critical assessment of the effects of [the transition] on the children’s mental health; the developmental and individual characteristics of [her son] and the developmental characteristics of [her daughter]; and the social and psychological factors linked to gender transition […], at the present moment contact between [the applicant] and [her children] and information on the gender transition would have a negative impact on their mental health and development. […].’
Notably, the expert report also noted a lack of research on this issue. On 19 March 2018 the Lyublinskiy District Court of Moscow ordered the restriction of A.M.’s parental rights and dismissed her counterclaim. The court stated, also referring to the expert findings, that A.M.’s gender transition would ‘create long-term psycho-traumatic circumstances for the children and produce negative effects on their mental health and psychological development’. The court considered that the applicant’s contact rights could be re-examined in the future, taking into account the children’s age and mental development. The children were 9 and 6 years old at the time.
A later alternative expert report commissioned by A.M. was very critical of the reasoning behind the judgment. It stated that:
‘(1) the applicant had expressed a cautious and constructive approach in contact with the children; (2) she was not suffering from any mental disorder, and that “transsexualism” as a medical diagnosis was not included in the list of disorders precluding a person from bringing up children; and (3) there was no reliable research proving that a transgender parent raising children could have an impact on their sexual orientation or gender identity’.
Subsequent appeals and cassation proceedings were dismissed. According to the applicant, on an unspecified date, N. changed her place of residence with the children and A.M. no longer received any information about where the children resided. She is still deprived of any opportunity to receive information about their lives. She has not seen or communicated with her children for approximately four years (§ 1, second concurring opinion).
The applicant, on her own behalf – and on behalf of her children – complained under Article 8 ECHR that the restriction of her parental rights had not been necessary in a democratic society and, therefore, had violated their right to respect for family life.
The parties had not disputed that the restrictions had been connected to the alleged negative effects of A.M.’s gender transition process on the children. The Court had to assess whether that decision had been reasonable and balanced. It noted that the domestic courts had based their decision heavily on the forensic expert report, but that this report had not set out how exactly A.M.’s gender transition had represented a risk to her children. This was particularly concerning given that the experts had acknowledged the lack of reliable scientific evidence on the issue, and cited only one widely criticised paper. According to the Court, the available international material ‘is unanimous that domestic courts deciding on the restriction of parental rights and contact should aim to (1) keep children together with their parents and, in the event of their separation, maintain direct contact between them on a regular basis, (2) take the child’s best interests as a primary consideration, and (3) assess the entire family situation through close and individualised scrutiny’ (§ 56). Agreeing with the third parties, it held that domestic courts need to avoid reliance on negative perceptions and prejudice about trans parenthood.
The Court decided that the domestic courts had failed to consider the specific family situation of the applicant. Furthermore, it found that a decision to entirely deprive a parent of contact should only be taken in the most extreme situations, which had not been the case, given the lack of demonstrable harm done to the children. The domestic courts had therefore failed to make a balanced and reasonable assessment of the case as they, upon the request of N., applied the most restrictive measure possible and completely deprived the applicant of any contact with her children. The Court thus concluded that the restriction of A.M.’s parental rights and of her contact with her children had not been necessary in a democratic society, leading to a violation of Article 8 ECHR.
The Court reiterated that gender identity was covered by the prohibition of discrimination set out in Article 14 ECHR. It noted that the applicant’s gender identity and gender transition had featured prominently, and had indeed been the decisive factor, in the reasoning of all the domestic decisions concerning the restriction of her parental rights. The applicant had therefore been treated differently from other parents who also seek contact with their estranged children, but whose gender identity matches their sex assigned at birth. The Court observed that the domestic courts did not conduct their assessment with the required scrutiny. They did not engage in an examination of the possible danger to the applicant’s children, the nature and severity of the restriction of parental rights, the consequences it might have for a child’s health and development, or any other relevant circumstances. In the absence of such relevant considerations the domestic courts based their decisions on the alleged possible negative effect of the applicant’s gender transition on her children. However, as the Court held under Article 8, the reasons put forward by the authorities and the evidence presented in support of their position could not be regarded as convincing and sufficient to prove the existence of any possible harm to the children’s development and to justify the restriction of the applicant’s parental rights.
The Court concluded that, in restricting the applicant’s parental rights and contact with her children without doing a proper evaluation of the possible harm to the applicant’s children, the domestic courts had relied on her gender transition. By doing so, they had singled A.M. out on the ground of her status as trans person and had made a distinction which was not warranted in the light of the existing Convention standards. While the Court agreed that the domestic authorities pursued a legitimate aim (the protection of health or morals, and the protection of the rights and freedoms of others – the children concerned), it found it impossible to conclude that a reasonable relationship of proportionality existed between the means employed and the aim pursued. It therefore found a violation of Article 14 read together with Article 8 ECHR.
The judgment significantly strengthens the protection of trans parents under the ECHR. Whereas a decade ago, the Court did not find a violation of the Convention in the comparable case of P.V. v. Spain, it now requires domestic authorities to restrain from limiting the contact between a trans parent and their children without a thorough and individualised analysis of the family situation and the best interests of the children concerned. Indeed, as Laurens Lavrysen noted in his analysis of the judgment in P.V. v. Spain, in 2010 the Court did not question the domestic courts’ appraisal of the questionable expert opinion and had simply accepted that contact restrictions were in the best interests of the child. Lavrysen therefore urged the Court to ‘dig deeper’, and to rule out the risk that conclusions were reached based on bias and prejudice. In the judgment at hand, the Court did exactly that. It is reflective of the attention the Court has shown in recent cases for the harms that trans persons suffer when States interfere with their private and family life (see for instance the recent case of X. and Y. v. Romania.
The judgment also clearly shows the importance of the contribution of third-party interveners in cases that concern issues that arguably do not fall within the judges’ expertise. The third parties – including the Human Rights Centre – had presented several studies showing that a gender transition of a parent does not necessarily lead to negative effects for a child’s well-being. However, and somewhat regrettable, the Court refused to ‘engage in the assessment of the reliability and relevance of the existing scientific research on transgender parenting’ (§ 55). Instead, the Court preferred a procedural approach. While the Court – rightly – did not entirely exclude the possibility that a parent’s gender transition could in exceptional situations play a role in a court’s decision to restrict contact with their child(ren), it made it clear that domestic courts should aim to keep children with their parents. In the event of their separation, domestic authorities should aim to maintain direct contact on a regular basis, taking into account the child’s best interests. In this process, domestic authorities may not simply rely on unsubstantiated negative perceptions and prejudice about trans parenthood. Restricting contact between a trans parent and their child(ren) is therefore only possible as a measure of last resort, in cases of demonstrable harm to the child(ren) concerned.
While the Court certainly denounced the domestic courts’ approach, it unfortunately did not go as far as explicitly qualifying it as stereotypical. In our third-party intervention, we invited the Court to actively adopt an anti-stereotyping approach in cases involving human rights violations in relation to trans persons. Indeed, in cases such as Alajos Kiss v. Hungary and Carvalho Pinto de Sousa Morais v. Portugal, the Court considered that the issue with stereotyping of a certain group in society lies in the fact that it prohibits the individualised evaluation of their capacity and needs, which hinders a proper adjudication of rights. A strong refutal of stereotypes that limit human rights protection must therefore start with naming the stereotypes involved and explicitly labelling them as problematic.
Next to scientific research on children’s well-being after a parent’s gender transition, the third parties also presented studies on potential measures and good practices on how to support families confronted with a gender transition. Even though the Court made use of a procedural review and domestic courts could therefore arguably benefit from guidance on how to approach complex intra-family conflicts following a gender transition, it did not find it appropriate to review the materials. While it indeed was not necessary for the outcome of the case at hand to engage with alternative measures to support trans families, the Court appeared to pay no heed to the fact that many judges may lack any expertise in dealing with these delicate issues – including also the aspects associated with children’s rights – while being confronted with an increasingly hostile environment towards LGBTIQ+ persons across various parts of Europe. Nevertheless, in her separate concurring opinion, Judge Elósegui – heavily relying on the input by the third parties – stressed the importance of family therapy and mediation in complex custody settings and in assisting families where a parent undergoes a gender transition, taking into account the child’s best interests.
Another important takeaway from this case is that the Court finally found a violation of Article 14 ECHR in a case involving an individual trans applicant. While it has held that the prohibition of discrimination under Article 14 ECHR also covers gender identity (as well as ‘transsexuality’) in previous cases (see, for instance, P.V. v. Spain, Identoba and Others v. Georgia), the Court has shown great reluctance to truly address the structural discrimination trans persons face in a cisnormative society. Indeed, in several cases concerning (conditions for) legal gender recognition, the Court has refused to examine claims under Article 14 ECHR after having found a violation of another Convention provision (i.e., Article 8) (see for instance A.P., Garçon, Nicot v. France). It must therefore be strongly welcomed that the Court found a violation of Article 14 ECHR in the case at hand, and condemned the State for having singled out a trans parent like the applicant, for no other reason than her gender identity. In this way, parents who undergo a gender transition can rely on the same level of protection under the Convention as parents who come out as gay have since the case of Salgueiro da Silva Mouta v. Portugal.
As Alice Margaria also mentioned in her assessment of the judgment, the question arises what impact this judgment will have for cases that more thoroughly challenge traditional heteronormativity in family settings. After all, A.M. is a biological parent to her children and only started her gender transition after the children were already born. While States may not restrict the parental rights of a trans parent simply on the basis of their gender identity/transition, it remains to be seen what the Court will decide in cases where a trans parent had children after their transition and wishes to be recognised in the parental role matching their gender identity (see O.H. and G.H. v. Germany for a case involving a trans man who gave birth, and C.V. v. France and M.E.D. v. France for a case involving a trans woman who wants to be recognised as her child’s mother).
In sum, while the Court’s judgment in A.M. and Others v. Russia means another and important step forward in the protection of the human rights of trans persons, it can be doubted whether this judgment will, in reality, be more than a paper tiger. Indeed, it remains to be seen whether the Russian authorities will now feel obliged to actively cooperate in deconstructing cis- and heteronormativity in family settings. The request by the Government to refer to the case to the Grand Chamber is already telling in that regard.