From child protection to children's rights: rethinking homosexual propaganda bans in human rights law.

• Author: Thoreson, Ryan
• Position: COMMENT

On June 29, 2013, Russian President Vladimir Putin signed into law a bill prohibiting "propaganda of non-traditional sexual relations among minors," including supportive statements about gay, lesbian, bisexual, and transgender persons. (1) The legislation, which included fines of up to one million roubles (equivalent to roughly $31,000 at the time of passage) and possible jail time for offenders, sailed through the Duma on a vote of 436-0 and the Federation Council on a vote of 137-0, with roughly eighty-eight percent of respondents voicing support for the bill in public polling. (2)

The outcry from human rights activists was swift. Some groups staged disruptive protests, (3) while others used the fast-approaching Sochi Olympics to invite pressure from supranational bodies, governments, corporations, and civil society, directed toward urging Russia to repeal the law. (4) Graeme Reid, the director of the LGBT Program at Human Rights Watch, called the legislation "regressive and discriminatory," echoing condemnation from the European Union, the Council of Europe, and the Venice Commission. (5)

Russia's law sought to restrict gay advocacy in the name of child protection--an effort with a longstanding historical pedigree and contemporary resonance. Laws like the one in Russia are "child-protective" not because of their actual empirical effects, but because their proponents deploy the protection of children, whether rhetorically or out of genuine concern, as a central justification for the laws' existence. Some of the first efforts to restrict gay advocacy in the name of child protection arose in the United States and United Kingdom, (6) and many of these laws remain on the books. (7) These kinds of laws have been met with hearty approval in a range of other sociopolitical contexts globally; Russia's law was passed amidst a recent surge of proposed child-protective propaganda laws in sub-Saharan Africa and across Eastern Europe. (8)

By the time Russia's federal legislation drew the ire of activists around the globe, nearly identical laws had already been passed across Russia, and lawmakers stated that they were necessary to protect minors.9 As President Putin objected to the Associated Press:

[W]e have no laws against people with non-traditional sexual orientation.... [Y]ou kind of create an illusion among millions of spectators that we do have such laws, but we do not have such laws in Russia. Russia has adopted the law banning propaganda of non-traditional sexual relations among minors, but these are completely different things. (10) Activists dismissed this distinction, arguing that protecting children is a flimsy justification to crack down on LGBT individuals. (11) Yet the tension between these competing understandings of Russia's law is not new, and it persistently haunts sexual rights efforts globally. Recent decisions by supranational bodies have done little to relieve this tension, in part because they have failed to grasp the most central interests at stake when child-protective laws are introduced: the rights of children themselves.

In this Comment, I argue that a stronger emphasis on children's rights illustrates why supranational human rights bodies should consider childprotective restrictions on sexual rights presumptively invalid. In Part I, I chart the way in which the idea of a tension between protecting children and respecting sexual rights became firmly entrenched in human rights jurisprudence. In Part II, I look at recent decisions by the U.N. Human Rights Committee (HRC) (12) and the European Court of Human Rights (ECtHR) (13) that attempt to navigate this tension. Finally, in Part III, I argue that adjudicatory bodies have overlooked the already-recognized rights of children themselves--rights that tip the balance in favor of sexual rights claimants. In light of contemporary children's rights guarantees, states and supranational bodies should discard an approach that pits the interests of children against the rights of LGBT adults in favor of a more holistic assessment of the rights at stake. Such an assessment makes apparent that child-protective restrictions on sexual rights cannot withstand scrutiny by any institution that takes seriously contemporary human rights guarantees.

1. STATE ASSERTIONS OF CHILD-PROTECTIVE RATIONALES

   Proponents of laws restricting LGBT advocacy have used child-protective rationales before, insisting that the moral and physical development of minors requires careful circumscription of discussions of homosexuality and gender nonconformity. Opponents have portrayed these laws as thinly veiled assaults on LGBT rights, (14) but child-protective arguments in fact had meaningful support in human rights jurisprudence of the 1970s and 1980s. The initial challenges to child-protective laws established the principle that states enjoy some discretion in fulfilling their human rights commitments in particular areas, including morality, and the repercussions of these arguments resonate in the present day.

   One of the earliest and most doctrinally important cases on the protection of children's morals was Handyside v. United Kingdom, decided by the ECtHR in 1976. (15) In Handyside, the Court considered the legality of the United Kingdom's seizure of a book intended for schoolchildren, parts of which spoke frankly and openly about homosexuality, sex, and drug use. The ECtHR ultimately deferred to the United Kingdom's regulatory powers in the realm of morality. Notably, it began by finding that the aim of the judgment and the initial seizures of the book-that is, "the protection of the morals of the young"-- was legitimate. (16) The Court then determined that the measures used were sufficiently "necessary" to pursue that aim, and it ultimately concluded that no violation of the European Convention had taken place. (17)

   The result in Handyside was not an aberration. Just six years later, the HRC reached a similar conclusion in Hertzberg v. Finland. (18) The complainants in Hertzberg had produced or appeared in television or radio programs related to homosexuality--programs that were censored by the state-controlled Finnish Broadcasting Company. (19) In its ruling, the HRC noted that

   public morals differ widely. There is no universally applicable common standard. Consequently, in this respect, a certain margin of discretion must be accorded to the responsible national authorities. The Committee finds that it cannot question the decision of the responsible organs of the Finnish Broadcasting Corporation that radio and TV are not the appropriate forums to discuss issues related to homosexuality, as far as a programme could be judged as encouraging homosexual behaviour. ... In particular, harmful effects on minors cannot be excluded. (20) In Hertzberg and Handyside, then, influential human rights bodies recognized that states have an interest in protecting children and determined that this interest in child protection outweighed the expressive rights of adults with regard to public information about sex and sexuality. In the 1970s and 1980s, child-protective rationales for restrictions on LGBT advocacy were not simply plausible, but decisive as a matter of human rights doctrine. Both decisions suggested supranational bodies were prepared to give wide latitude to states where issues of moral--which usually meant sexual--regulation were concerned.

   When Handyside and Hertzberg were decided, sexual rights were virtually unrecognized as a category of human rights law. Today, women's rights and LGBT rights claims have gained ground at the domestic level and also have been increasingly recognized by supranational bodies. (21) In Dudgeon v. United Kingdom, decided in 1981, the ECtHR ruled that Northern Ireland's sodomy law violated the European Convention's guarantee of privacy. (22) The Court's analysis in Dudgeon was echoed in 1988, when the ECtHR struck down a sodomy law on similar grounds in Norris v. Ireland. (23) The HRC confronted its own sodomy law challenge in 1994, ultimately ruling in Toonen v. Australia that Tasmania's sodomy law was an invasion of privacy. (24) Each of these decisions established that LGBT individuals had some rights that could not be infringed in the name of an alleged public good.

   It is sometimes assumed that later sexual rights decisions implicitly repudiated Handyside and Hertzberg, by virtue of removing morality from the sole purview of states and exposing it to supranational scrutiny. (25) Yet the "margin of appreciation"--Handyside's term for the degree of discretion that states enjoy in fulfilling their obligations under the European Convention, particularly on issues of morality, national security, and public order (26)--remains a tenet of supranational human rights jurisprudence. Handyside continues to be cited by the ECtHR, (27) and the issues Handyside and Hertzberg decided are in many ways broader than the narrow sodomy law question posed by Toonen, Dudgeon, and Norris. Recent decisions on child-protective laws, which I discuss below, have underscored the unresolved questions in these lines of canonical human rights cases. Collectively, the cases establish a strong right to sexual privacy, but they potentially leave states a wide berth to regulate public expressions of sexuality, particularly when children may witness them. (28) Under this interpretive synthesis, the proper balance between child protection and the rights of LGBT individuals remains an open question.

2. BALANCING CHILD-PROTECTIVE RATIONALES AND SEXUAL RIGHTS

   Although various European organs have spoken out against the passage of Russia's federal propaganda law, neither the ECtHR nor the HRC has yet ruled on its legality. The bodies have, however, addressed other regional and municipal child-protective laws, also passed in Russia. These decisions-- Alekseyev v. Russia and Fedotova v. Russian Federation--offer reasons why propaganda laws may violate human rights guarantees...