March 31, 2023
By Ingrida Milkaitė
On 23 January 2023, the Grand Chamber of the ECtHR found that restricting and labelling a book of fairy tales as harmful to children solely because of LGBTI content breached Article 10 ECHR. For the first time in the Court’s case-law, Macatė v. Lithuania (app. no. 61435/19) assessed restrictions imposed on literature about same-sex relationships which is aimed directly at children and written in a style and language easily accessible to them. The Court warranted a more extensive analysis of the legitimate aim pursued by such restrictions. This resulted in one of the few Article-10 judgments where the imposed restrictions were unanimously found to not pursue any aims that can be accepted as legitimate for the purposes of Article 10 § 2 ECHR.
The case of Macatė v. Lithuania concerns a children’s book of fairy tales containing storylines about same-sex marriage published in December 2013. ‘Gintarinė širdis’ or ‘Amber Heart’ was written by Neringa Dangvydė Macatė, a professional writer and specialist in children’s literature, also openly homosexual. She passed away on 21 March 2020 and her mother continued the proceedings.
The applicant’s book (the English version is accessible free of charge here) contains six fairy tales aimed at children of primary school age (9–10-year-olds). The fairy tales – based on traditional fairy-tale motifs – depict members of various marginalised groups (different ethnic groups or people with intellectual disabilities) and address issues such as stigmatisation, bullying, divorced families and emigration, with the aim of teaching children to accept differences in the appearance and lifestyles of others (§ 57). Two of the stories concern relationships and marriages between persons of the same sex. One tale tells the story of a prince who “arrived at a city whose inhabitants were dark-skinned and fell in love with a male tailor” (§ 16). The other tale is about a princess who marries her childhood friend, a shoemaker’s daughter (§ 17) (the English version can be accessed here).
The book was published by the publishing house of the Lithuanian University of Educational Sciences (an autonomous, public institution), with partial funding from the Ministry of Culture. After its publication, three major events unfolded. On the 1st of March 2014, one of the biggest Lithuanian newspapers, ‘Lietuvos rytas’, published an article entitled “Fairy tales about non-traditional love – in children’s backpacks”. It contained an interview with the author and comments from members of the Lithuanian Parents’ Forum expressing criticism that stories about same-sex relationships were being presented to children (§ 19). Three days later, the Registry of the Government received an email from an individual alleging that the book was “encouraging perversions” and forwarded it to the Ministry of Culture. The Ministry requested the Inspectorate of Journalist Ethics to assess whether the book might be harmful to children. Finally, on the 20th of March 2014, eight members of the Lithuanian Parliament sent a critical letter to the Rector of the University, in which they referred to the article in ‘Lietuvos rytas’. The Rector then ordered the publishing house to suspend the distribution of the book.
The Inspectorate of Journalist Ethics (the Inspectorate) assessed the book as it is the institution in charge of monitoring the implementation of the Act on the Protection of Minors from Negative Effects of Public Information (the Minors Protection Act) (§ 85). Considering that “fairy tales that portray the relationship between same-sex couples as normal and self-evident are harmful to a child’s fragile, nascent worldview and are overly invasive, directive and manipulative” (§ 23), the Inspectorate concluded that the two fairy tales which depicted same-sex couples did not comply with section 4 § 2 (16) of the Minors Protection Act. Following the Inspectorate’s recommendation that the book be labelled with a warning that it might be harmful to children under 14, the University abided by it and resumed the book’s distribution a year later, with the book bearing a warning label.
The applicant lodged civil proceedings against the University, arguing that depiction of same-sex relationships could not be considered harmful for children of any age. Yet, in 2019, the measures taken against the book were endorsed by the national courts and the applicant’s claim was dismissed. Having exhausted all domestic remedies, she complained to the ECtHR about the temporary suspension of the distribution and subsequent labelling of her book. She alleged that those measures had been taken solely because her book contained a positive depiction of same-sex relationships. She argued that section 4 § 2 (16) of the Minors Protection Act had aimed at limiting the dissemination of any positive information about LGBTI persons, on the pretext of protecting children. She also complained, under Article 14 (prohibition of discrimination) in conjunction with Article 10 (freedom of expression), that the reason behind the restrictions on her book had been prejudice against sexual minorities.
First, the Court found that the temporary suspension of the distribution of the book and its labelling could be attributed to the State. The measures taken by the (public) University had directly resulted from domestic legislation, endorsed by the national courts, and also stemmed from interventions by other public authorities (§ 176). The Court considered that the measures taken with regard to the applicant’s book had interfered with her freedom of expression. The books had been recalled from bookshops, reducing availability to readers. The warning labels had likely decreased readership as many parents were dissuaded from letting their children read it, especially given “the persistence of stereotypical attitudes, prejudice, hostility and discrimination against the LGBTI community in Lithuania” (§ 181). Moreover, children older than 14 are far less interested in reading fairy tales than 9-10-year-olds. Finally, the labels impacted the applicant’s reputation as an established children’s author and “were liable to discourage her and other authors from publishing similar literature, thereby creating a chilling effect” (§ 181-182).
In terms of the lawfulness of the interference, the Court found that the measures had had a basis in domestic law, namely section 4 § 2 (16) of the Minors Protection Act. That provision states that any information which “expresses contempt for family values” or “encourages a different concept of marriage and creation of family than the one enshrined in the Constitution or the Civil Code” (both of which only allow for marriage between a man and a woman) is considered as having a negative effect on minors (§ 23, for the full provision currently in force, please see § 81-82 of the judgment).
The parties disagreed as to what had been the aim of the imposed restrictions. The Government claimed that their aim was twofold: to protect children from sexually explicit content and from content which “promoted” same-sex relationships, by presenting those as superior to different-sex relationships and by “insulting”, “degrading” or “belittling” them (§ 189). The Court rejected these aims as it could not see how certain passages – a princess and a shoemaker’s daughter sleeping in one another’s arms after their wedding or embracing – depicted carnal love. The Court further noted that the Minors Protection Act contains several provisions that refer to information of an erotic nature or encouraging sexual relations (sections 4 §§ 2 (4) and (15)) but those provisions were never invoked at any stage of the domestic proceedings (§ 191). The Court was also not convinced by the second aim as the book advocated respect for and acceptance of all members of a given society in a fundamental aspect of their lives – a committed relationship (§ 214).
Furthermore, the Court found that the legislative history of section 4 § 2 (16) of the Minors Protection Act, and its application, revealed an underlying intent to restrict children’s access to content presenting same-sex relationships as being essentially equivalent to different-sex relationships (§ 195, 198). The text of the section clearly meant to refer to same-sex relationships, since both the Constitution and the Civil Code only provide for marriage between men and women (§ 196-197). Every single instance in which section 4 § 2 (16) was applied concerned information about LGBTI-related issues, like social advertisements or television broadcasts promoting acceptance of sexual minorities, information about gay pride events and the applicant’s book (§ 197).
Having established the pursued aim, the Court examined whether such an aim could be regarded as legitimate under the Convention. The Court reiterated that a legislative ban on the “promotion of homosexuality or non-traditional sexual relations” among minors does not serve to advance the legitimate aims of protection of morals, health or the rights of others (§ 202). By adopting such laws, the authorities reinforce stigma and prejudice and encourage homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society (see Bayev and Others v Russia § 61, 83-84) – a conclusion which the Grand Chamber fully endorsed (§ 202). The Court also emphasised that it has consistently declined to endorse policies and decisions embodying a predisposed bias on the part of a heterosexual majority against a homosexual minority (Bayev and Others, § 68) (§ 209).
Crucially, with respect to the best interests of the child and potential harm, the Court had already held in its case-law that there was no scientific evidence to suggest that the mere mention of homosexuality, or open public debate about sexual minorities’ social status, would adversely affect children (Alekseyev v. Russia, § 86) (§ 210). The Court stressed that various international bodies have criticised laws which seek to restrict children’s access to information about different sexual orientations as “it is the lack of such information and the continuing stigmatisation of LGBTI persons in society which is harmful to children” (see the relevant international material [at § 105-122]) (§ 211).
The Court further observed that “legal provisions which explicitly restrict minors’ access to information about homosexuality or same-sex relationships are present in only one member State” – Hungary, which prompted the European Commission to launch the infringement procedure (§ 212). The Court also took note of the decisions taken by courts in Switzerland, the US and Canada on children’s access to information about same-sex relationships, holding that the“authorities could not disregard social realities and the existence of different types of relationships in societies in which children lived” and that “the mere fact that some people might find certain types of families or relationships objectionable or immoral could not justify preventing children from learning about them” (§ 213).
Finally, the Court held that restricting children’s access to information about same-sex relationships – where such information could not be considered inappropriate or harmful to them on any other basis than sexual orientation – demonstrated that the authorities had a preference for some types of relationships and families over othersand that they saw different-sex relationships as more socially acceptable and valuable than same-sex relationships, thereby contributing to continuing stigmatisation(§ 215). Such restrictions, however limited in their scope and effects, were incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society(Bayev and Others, § 83) (§ 215).
In light of these reasons, the Court unanimously found that the restrictions imposed on Macatė’s Article 10 rights and her book “do not pursue any aims that can be accepted as legitimate” for the purposes of Article 10 § 2 ECHR (§ 216, emphasis added), resulting in a violation of Article 10 ECHR (§ 218).
With respect to the applicant’s complaint under Article 14 taken in conjunction with Article 10 ECHR, the Court considered that “the impugned measures were principally directed at the LGBTI content of the expression rather than the [personal characteristics of the] author of the expression herself” and decided that the “central issue has been sufficiently taken into account”, therefore finding (by 12 votes to 5) that “there is no cause in the present case for a separate examination” (§ 221).
The Court held that Lithuania was to pay the applicant’s mother 12,000 euros in respect of non-pecuniary damage and EUR 5,000 in respect of costs and expenses.
The five judges that voted against the decision not to examine the complaint under Article 14 in conjunction with Article 10 ECHR were Judges Yudkivska, Lubarda, Guerra Martins and Zünd, joined by Judge Kūris. They expressed a joint partly dissenting opinion which deserves to be on this blog’s list of the best separate opinions of 2023. The partly dissenting Judges fully agreed with the finding of the violation of Article 10 ECHR but disagreed that there was no need to examine Article 14 in conjunction with Article 10 ECRH (§ 2).
The Judges first provided an overview of the Court’s approach in discrimination cases, shining the light on the occasions when the Court did find a violation of Article 14 in conjunction with Article 10 or 11 ECHR. They claimed that the Court had enough support in its previous case-law to revisit its approach in cases concerning discrimination aimed at content (rather than its author or their sexual orientation) since such an approach “would be fully in keeping with the spirit of the Convention and its underlying values” and it “would be artificial to suggest that restricting the expression of pro-LGBTI views is based on something other than prejudice against the LGBTI community as a group” (§ 11, 12). The Judges stressed that “discriminatory attitudes against the LGBTI community as a group constituted afundamental aspect of the present case, which should accordingly have been addressed” and the violation of Article 14 in conjunction with Article 10 ECHR should have been found (§ 19, 21).
This Grand Chamber judgment is convincing, its arguments are well-developed and grounded in both the previous case law of the ECtHR and the relevant international and regional policies and guidelines on the levels of the Council of Europe (CoE), European Union and the United Nations. However, it differs from the Court’s previous case law where it critically engaged with the legitimacy of the aims promoted by the government (see, for example, Bayev and Others v. Russia and Alekseyev v. Russia). In Macatė v. Lithuania, the Court in fact identified a hidden motive behind the restrictions (the authorities’ preference for different-sex relationships over same-sex relationships) and rejected all the aims the Government claimed to be pursuing as completely illegitimate (§ 215-216). This judgment is far-reaching and impactful not only for Lithuania but arguably for other members of the CoE as well. The case deals with issues that are unfortunately not exclusively relevant for Lithuania as laws which restrict (or ban) the dissemination of information relating to LGBTI persons and same-sex relationships are also in force in Hungary and the former CoE member State the Russian Federation (§ 152). Other CoE member States also facing LGBTI discrimination related issues include Estonia, Latvia, Poland, Romania, Slovenia, Spain, the UK (§ 113, 171), Moldova and Ukraine (§ 122, 171), demonstrating the continuous need for improvement and strong (Grand Chamber) judgments on the matter.
This case relates to an intense and ongoing public debate encompassing diverging opinions on the subject of ‘moral attitudes’ towards (‘traditional’) family, education of children and societal values not only in Lithuania but also a few other CoE member States and a constructive public debate on the issues addressed by this case needs to be promoted. In addition to discussions on the education of children and the provision of objective, non-stigmatising information on sexual orientation, gender identity and sex characteristics, we also need to “carry out extensive public awareness-raising campaigns so as to counter misleading or false narratives, increase understanding of the situation and rights of LGBTI people” (§ 18, CoE Resolution 2417 (2022)). Such campaigns must also be directed at adults, encompassing both the society as a whole and the people in power. As clearly shown by this case, “legislation and measures which restricted expression on LGBTQI-related topics […] created an environment in which the social exclusion of and discrimination against LGBTQI individuals was seen as behaviour supported by the government” (§ 173). It was submitted that “the [public] University had decided to suspend the distribution of the book” directly after “the interventions by members of the [Parliament] and the Ministry of Culture” (§ 145). It was also pointed out that the Constitutional Court’s interpretation of the concept of the family (which now does not exclusively relate to relationships between men and women anymore) “had been questioned at the highest political level – specifically, the President of Lithuania, in an interview given in September 2021, had stated that he understood family as created exclusively through marriage between a man and a woman” (§ 138). The same President who still holds the position today refused to join other European leaders in signing the letter deploring Hungary’s ‘Anti-Paedophilia Act’ and asked to withhold judgement for Hungary which is now subject to an infringement procedure, with the European Commission referring Hungary to the EU Court of Justice over violations of LGBTI rights. In this context it is important to remember the guidance by the CoE Parliamentary Assembly, acknowledging that “societal changes require time” and also providing that “politicians, through their example and discourse, as well as laws through their binding nature, are powerful driving forces to promote change in society” (§ 3).
Stereotypical attitudes, prejudice and hostility against LGBTI community will prevail as long as these efforts are not undertaken, and discriminatory, stigmatising measures will continue to be used in the name of “protecting children from harm”. Many international and European reports – including those specifically focusing on Lithuania – show that measures such as those described in the present case are counterproductive: far from protecting children, they in fact cause them great harm. They encourage abuse and violence against children, and children of LGBTI families’ (§ 122), they increase the risk of suicide among LGBTI children, they result in children and young people being the primary victims of attacks against LGBTI rights, especially in rural areas and smaller urban areas, they lead to bullying, harassment and isolation of children and young people at schools and elsewhere (§ 113). That is actual proven harm to children, offending against their best interests.
Calls for repealing or amending the Lithuanian Minor Protection Act have already been issued by a number of European bodies (§ 106, 109, 113) as well as the civil society in Lithuania, specifically calling for the ‘Neringa amendment’, which would repeal section 4 § 2 (16). This call gained momentum after the Lithuanian Constitutional Court had issued its prominent ruling of 11 January 2019 which found that unlike the constitutional concept of marriage, the constitutional concept of family “is neutral in terms of gender”, effectively recognising the protection of same-sex families (§ 99). Contrary to the Government’s submission that section 4 § 2 (16) now “had to be interpreted in accordance with the case-law of the Constitutional Court” (§ 159), this section needs to be repealed completely as it still serves as a fear-inducing provision with a clear chilling effect on teachers, authors and others, even if it is rarely applied.
Children have the well-established rights to non-discrimination, protection of their best interests, development, identity, freedom of expression, thought and association and the right to receive information from diverse sources (see Articles 2, 3, 6, 8, 13, 14, 15, 17 the UN Convention on the Rights of the Child (UNCRC)) which is ratified by all members of the CoE). Under Articles 28 and 29 UNCRC, children have the right to education and the education of the child shall be directed to the “development of respect for human rights and fundamental freedoms”, “values” and the “preparation of the child for responsible life in a free society, in the spirit of understanding, peace [and] tolerance”. Institutions which are specifically responsible for the implementation of children’s rights, need to make full use of their competencies and ensure that children’s rights are considered, including striving that laws and regulations affecting children are evidence-based and that both experts and children are consulted (in accordance with children’s right to be heard under Article 12 UNCRC).
It is my hope that this Grand Chamber judgment will eventually foster open minds and warm hearts towards same-sex families. We must step up the awareness-raising efforts and raise children who care about other people who might be different from them so that “[it wouldn’t] bother anyone that two young men held hands and exchanged loving glances while they walked” (§ 16, Neringa Dangvydė, ‘Amber Heart’, p. 57).