Trans Family Law in Strasbourg: The Bittersweet Flavour of Savinovskikh and Others v Russia

by Alice Margaria

The European Court of Human Rights (the Court) is becoming increasingly familiar with some of the struggles faced by trans parents. Over the last four years alone, it has ruled on at least three relevant cases: two concerning the termination of parental rights and one tackling the especially sensitive matter of parental status. The most recent case, Savinovskikh and Others v Russia, involved the termination of a foster care arrangement with a trans parent who had been raising two children for three and one and a half years, respectively, due to his gender identity. Following its approach in A.M. and Others v Russia (2021), the Court found a violation of Article 8 but deemed it unnecessary to separately examine the discrimination complaint raised under Article 14 in conjunction with Article 8. This blogpost places the judgment in Savinovskikh within the broader caselaw on trans parenting/hood and considers what conclusions can thus far be drawn about the Court’s contribution to trans family law.

The facts of the case

The applicants are a trans man – assigned female at birth, who has three biological children – and two children born in 2012 (DD and KK) who were placed in his care after living in a public care facility for several years. DD has been diagnosed as HIV-positive and experienced development delays, while KK, born prematurely, was diagnosed with cerebral palsy, delayed speech development and intellectual disabilities. When DD and KK were placed in his care, Mr Savinovskikh was still legally registered as female and was married to Mr ES. They lived together with their two biological children and Mr Savinovskikh’s biological child from a previous marriage. In July 2017, Mr Savinovskikh was diagnosed with ‘transsexualism’, a prerequisite for gender-affirming surgery, and underwent a double mastectomy a couple of weeks later.

This raised concerns among the local social services, prompting a visit to the applicant and his children. During that visit, Mr Savinovskikh disclosed his intention to change his legal gender, following his diagnosis of ‘transsexualism’. Shortly afterwards, social services ordered the termination of his custody for both DD and KK, citing a conflict between the interests of the children and those of Mr Savinovskikh. When he declined to sign a friendly agreement to end foster care, the children were removed from his home and placed in a rehabilitation centre for children. Since then (August 2017), the applicant has not seen the children.

Judicial proceedings were initiated by the social services to terminate the foster care agreement, citing the applicant’s ‘transsexualism’ as the primary reason and arguing that ‘the children were initially placed in a traditional family’ (para 19). The applicant filed a counter claim, asserting that he never intended to change his legal gender, and that the mastectomy was only for cosmetic purposes. He argued that ‘transsexualism’ was merely one aspect of his personality and that he continued to fulfil the role of mother, with the children still perceiving him as such (para 20).

The District Court ordered the termination of the foster care agreement, a decision later upheld by the Regional Court on the following grounds. Domestic courts found that the applicant had breached the provisions of the foster care agreement by not informing social services of ‘significant circumstances’, including his diagnosis, his surgery, and his presentation as male on social media (para 24), which ‘could not but affect the mental, spiritual and moral development of the fostered children’ (para 26). Although ‘transsexualism’ was not considered a ‘psychiatric disorder’ in itself (para 22), domestic courts argued that, in this case, the diagnosis alone was sufficient to justify terminating custody, as it was ‘in substance contrary to the principles of family law of [the] country’, in particular, the ineligibility of same-sex couples as foster parents, ‘traditions, and mentality of [Russian] society’ (para 22).

Domestic courts also noted that, based on the report drawn up by social services after visiting the applicant’s home, the sanitary conditions were unsatisfactory. They further cited major gaps in KK’s intellectual development as evidence of a lack of necessary attention on Mr Savinovskikh’s part. Even if the children were found to be emotionally attached to the applicant and other family members, domestic courts held that this bond was insufficient to negate the conflict between the interests of the parent and those of the children (para 23). Mr Savinovskikh’s subsequent appeal to the Supreme Court was dismissed. Following this, he fled to another country with his husband and their two biological children, where he was granted asylum. DD and KK were eventually placed in the foster care of a different-sex couple.

The Court’s Judgment

Mr Savinovskikh, on his own behalf and on behalf of DD and KK, complained that the decision to terminate the foster care agreement and the removal of the children breached their right to respect for family life (Article 8). The Court acknowledged that the removal of the children constituted an interference with their Article 8 rights, which was in accordance with national law and pursued the legitimate aim to protect the interests of DD and KK (para 70). Yet the Court also found that domestic authorities had failed to undertake ‘an in-depth examination of the entire family situation and to make a balanced and reasonable assessment of the respective interests of each person with a constant concern for determining what the best solution would be for the children’ (para 76). The alleged conflict between the interests of the applicant and those of the children, relied upon by domestic courts, had not been substantiated by any evidence (para 74). The Court concluded that foster care had been terminated ‘essentially’ on account of his trans identity and the resulting disruption of the traditional family, which had consistently been at the heart of the domestic deliberations (para 71).

The Court found it important to also stress that the decision to terminate the applicant’s custody concerned children who were four and five years old at the time, who had medical diagnoses, had been abandoned at birth and had spent time in state-run care institutions before being placed in Mr Savinovskikh’s care when they were aged one and three (para 73). Moreover, after the termination of the foster care agreement, DD and KK were placed in a social rehabilitation centre for children where they spent 1.5 and 2.5 years, respectively, before being placed in a new family (para 75). In light of these circumstances, Mr Savinovskikh was considered to have standing to bring the present complaint also on their behalf. To conclude, the Court found a violation of Article 8 in respect of Mr. Savinovskikh, DD, and KK.

The applicants also alleged a violation of Article 14 in conjunction with Article 8, arguing that Mr Savinovskikh’s gender identity had been the primary ground underlying the domestic court’s decision to terminate the foster care agreement. After declaring this complaint admissible and considering the merits, including submissions from a number of third-party interveners, the Court concluded that, given the finding of a violation of Article 8, it was not necessary to examine the merits of the Article 14 complaint separately.

Zooming In and Out: Making Sense of the Caselaw to Date

This judgment contributes to a growing body of caselaw concerning trans family law, namely the regulation of family relationships involving trans people. Last year, the Court was confronted with the more complex question of birth registration in two notable cases involving a trans birthing father and a trans mother, respectively, both of whom had children born after their legal gender recognition. In A.H. and Others v Germany, a trans mother was registered under her deadname and as ‘father’ on the child’s birth certificate because she had contributed sperm to her child’s conception, and German parentage law assigns parental status in accordance with reproductive functions. Similarly, in O.H. and G.H. v Germany, a trans father who gave birth to his child was assigned the legal status of ‘mother’ in line with the mater semper certa est rule. In both cases, incorrect birth registration was deemed compatible with Article 8. Since the existence of a legal parent-child relationship was undisputed, and given the margin of appreciation afforded to the state, the Court concluded that the interference with the trans parent’s right to respect for private and family life was justified by a public interest in ensuring the reliability and consistency of civil registration – and, more broadly, legal certainty – and the need to protect the child’s right to know their origins, interpreted as the right to establish details of one’s parents.

Before addressing the question of parental status in O.H. and G.H. and A.H. and Others v Germany, the Court had already examined the more circumscribed issue of restrictions on parental rights for trans parents based on gender identity. In the case of A.M. and Others v Russia (2021), the trans parent involved was undergoing gender transition at the time of the domestic legal proceedings, but – unlike Mr Savinovskikh – Ms A.M. was the biological parent of the applicant children, with respect to whom her parental rights were litigated. In A.M., her former spouse, N., objected to the applicant’s visits to their children (who lived with N.) and initiated proceedings to restrict contact, claiming that Ms A.M.’s gender transition had caused irreparable psychological harm to the children. The domestic courts supported this claim, relying heavily on a biased, non-evidence-based expert report, and ultimately ordered the restriction of Ms. A.M.’s parental rights, depriving her of contact with her children, whom she had not seen for the past four years.

The Court had unanimously found a violation of Article 8, emphasising that domestic courts had failed to consider the specific family situation of the applicant and had imposed the most restrictive measure possible (i.e. depriving the applicant of any contact) without any evidence of harm to the children. The Court also found a violation of Article 14 taken together with Article 8, noting that the applicant’s gender identity had been a decisive, omnipresent factor throughout the national proceedings and at the centre of deliberations (para 75). The applicant had been treated differently from cis parents seeking contact with their children and, according to the Court, there were no convincing and sufficient reasons for this differential treatment, leading to a breach of Article 14 in conjunction with Article 8.

This case was rightly seen as a step forward in strengthening the rights of trans parents, especially when compared to the earlier case of P.V. v Spain, where the Court had uncritically accepted that restricting contact was in the child’s best interests, without questioning the fact that the domestic courts had relied on a dubious expert opinion. While agreeing with this progress, I raised doubts about its actual ground-breaking nature from a broader trans rights perspective. The finding of a violation of both Article 8 and Article 14 in conjunction with Article 8, in my view, had – and still has – to be read in light of the specific features and boundaries of the case. Despite gender identity being a crucial issue, A.M. concerned a child born into a heterosexual marriage and genetically related to the applicant, and this led me to wonder how the Court would have ruled in a case where the trans parent-child relationship at stake did not have those ‘conventional’ features. The case of Savinovskikh has brought this hypothetical scenario into reality, and the Court’s approach to Article 14 further lends weight to my concerns.

In Savinovskikh, the Court’s majority acknowledges discrimination on the grounds of gender identity as a central aspect of the contested decisions by domestic courts, but qualifies this only as a violation of the applicants’ right to respect for family life, and not as a form of discrimination contrary to Article 14. Even if the finding of a violation of Article 8 rests upon the lack of an individualised assessment and the absence of evidence supporting the alleged harm caused by the applicant’s gender transition to the children, the Court, moved by what I have previously termed an anti-stereotyping mentality, fails to explicitly acknowledge that the foster care agreement was terminated and that DD and KK were taken away from Mr. Savinovskikh solely because he is a trans man. Is this simply a framing issue? Perhaps not.

Before reflecting on what the Court’s approach in Savinovskikh, when read in light of previous case law, tells us about trans families in Strasbourg case law, I would first like to make a remark on the methodology used by the Court’s majority in assessing the discrimination complaint. For scholars and practitioners familiar with the work of the Court, the ‘no need to examine separately’ argument stands out as quite ordinary practice in Strasbourg (see also Ganesan and Köhler’s comment on W.W. v Poland), especially when non-traditional family relationships are at stake (see for instance D.B. and Others v Switzerland on surrogacy and gay fatherhood, in particular, the partly dissenting opinion by Judge Pavli). Yet, the path taken to reach that conclusion in this case was more tortuous than usual, possibly reflecting the hesitancy and difficulties the bench encountered in addressing this issue.

The Court ruled on the admissibility of the Article 14 complaint, examined its merits – including in detail the submission of the parties and third-party interveners, the Court’s own assessment referencing previous cases where relevant general principles under Article 14 had been established and reiterating that the prohibition of discrimination under Article 14 covers questions of gender identity (spending more than four pages of text on the matter) – to eventually conclude that it was not necessary to examine separately the merits of that same complaint. As Judge Serghides’ partly dissenting opinion seems to suggest, there lies a contradiction in the Court’s approach: while the Court stated that it was not necessary to examine the Article 14 complaint, it effectively did so, but then refrained from making any finding—let alone a finding of violation. As Judge Serghides also points out, this approach is even more problematic in a case like this, where discrimination on the grounds of gender identity is central to the applicant’s personal story as well as at the heart of the legal question raised.

So, taking a step back, what does the judgment in Savinovskikh add to or clarify about the ECtHR’s approach to trans parents’ rights? First, the caselaw seems to signal the importance of distinguishing between cases involving parental status and those concerning parental rights. Second, when discussing parental rights, it is crucial to distinguish between cases involving trans biological parents and cases involving trans non-biological parents. As mentioned before, a key distinguishing factor between the position of Ms A.M. and that of Mr. Savinovskikh was indeed the different grounds for having parental rights in the first place: biology in A.M., and a foster care agreement in Savinovskikh.

If one were to systematise the caselaw on trans parenting/hood so far, one might conclude that: (1) removing or restricting parental rights on the grounds of gender identity breaches Article 8, and whenever the children involved are biologically related to the trans parent, the Court feels more inclined to (say that it would) examine the Article 14 complaint separately and more prepared to find a violation. Related to this, when biological children are involved, the Court seems to find it easier—and perhaps more necessary—to challenge stereotypical views of trans individuals as unsuitable parents, and to act against the construction of trans parents’ rights as inherently contrary to children’s rights and welfare. As a result, foster trans families, such as that of Mr. Savinovskikh, do not appear to receive the same level of protection against discrimination.

(2) In contrast, when discussing parental status, the Court seems more inclined to emphasise factors that lead to a wider margin of appreciation, setting the stage for a more lenient review, and to support interpretations of the best interests of the child as inherently conflicting with the rights and interests of their own (trans) parents. In the cases of O.H. and G.H. and A.H. and Others, registering the parents in accordance with their legal gender identity was considered to clash with the child’s right to establish the details of their parents. One wonders what details the child would not already know, even more so after reading the reaction of the child involved, G.H., when the judgment in O.H. and G.H. was published: “I know where I come from and what my family looks like. And I find it incredible that the government has failed to acknowledge this my whole life” (source: Bundesverband Trans*; original in German, my own translation). Yet, an alleged right to be registered according to a traditional family model—with one (genetic) father and one (gestational) mother—appears to trump the lived experience and perspectives of those directly affected.

To conclude, the judgment in Savinovskikh adds a piece to the evolving puzzle of trans family law in Strasbourg. It confirms the Court’s readiness to sanction discrimination against trans parents depriving them of their parental rights because of their gender identity, while also suggesting the potential significance of biological ties in determining whether a violation extends to Article 14.