By Alice Margaria, Senior
Research Fellow, Department of ‘Law and Anthropology’, Max Planck Institute for
Social Anthropology
Introduction
On 6 July 2021,
the Court ruled that depriving a trans mother of contact rights with her
children and restricting her parental rights on the ground of her gender
identity, without close scrutiny, violated Article 8 and Article 14 ECHR. The
judgment in A.M.
and Others v Russia undoubtedly constitutes an important step towards
fighting discrimination against trans parents and their children. Yet, can it
be considered to break new grounds, or at least clarifying the standards of
protection, in terms of recognising LGBT parenthood or addressing the needs of
parents and children in contemporary families? This post offers some critical
reflections on the anti-stereotyping attitude (not yet approach!)
running through the reasoning, coupled with the specific post-divorce nature of
the case, thus raising doubts on the actual ground-breaking nature of A.M.
and Others from the perspective of LGBT rights.
The Story of
A.M. and her Children before Russian Courts
The first
applicant, A.M., who was legally registered as ‘male’, married N. in 2008. They
had two children (second and third applicants), born in 2009 and 2012. The
first applicant divorced N. in June 2015. They agreed that the children would
live with N. and A.M. would pay monthly maintenance allowance. A month later,
the first applicant transitioned and was legally recognised as belonging to the
female gender. Until December 2016, she regularly spent time with her children.
During their meetings, she wore men’s clothes and presented herself as ‘male’
to please N.’s request who would have otherwise objected to their contacts. In
December 2016, N. started legal proceedings to restrict A.M.’s contact rights
with her children claiming that the visits caused them psychological harm. A.M.
lodged a counterclaim.
In June 2017, the Lyublinskiy
District Court of Moscow ordered a forensic psychiatric, sexological and
psychological assessment of A.M. and her children. The expert reports stated
that, having regard to the age of the children, the role of parents in the
development of gender identification, societal pressure and the complexity of
their family situation, information about A.M.’s gender transition would have a
negative impact on the children. In
March 2018, the District Court ordered the restriction of A.M.’s
parental rights. The domestic court clarified that it was not A.M.’s ‘transsexualism’
per se which justified their decision (para 22); rather, as confirmed by
the expert reports, it was the disclosure of information on the first applicant’s
change of legal gender and the changes resulting from her transition on her
personality which would cause long-term psycho-traumatic circumstances for the
children and have a negative impact on their health and psychological
development. The District Court added that the issue should be re-examined in
future, when the children are older in order to ensure their gradual adjustment
to their parent’s gender identity whilst preserving their mental and
psychological health. A subsequent expert report commissioned by A.M. was very
critical of the District Court’s decision and considered the previous expert
assessments ‘unscientific in nature’ (para 23). After her appeals were
dismissed by domestic courts, A.M. – also on behalf of her children – lodged an
application with the ECtHR complaining of a violation of their right to respect
for family life (Article 8). She further argued that, the restriction of her
parental rights being based on her gender identity, she had suffered discrimination
contrary to Article 14 ECHR.
… And What Did
the Court Say?
The Court
declared the application admissible only in so far as it pertained to A.M. In
disputes between parents concerning parental rights other than custody – so the
Court explains it – being a natural parent does not give someone sufficient
basis to bring a complaint on behalf of a child. Going into the merits, the
Court found the decisions of the domestic courts to interfere with the
applicant’s right to respect for family life, to be in accordance with the
Russian Family Code, and to pursue the legitimate aim to protect health and
morals and the rights and freedoms of the children. The issue to be determined
was, therefore, whether restricting A.M.’s parental rights and depriving her of
contact rights was necessary in a democratic society. In more concrete terms,
the Court’s task was to determine whether domestic courts, when taking the
contested decisions, had made a balanced and reasonable assessment of the
interests of all parties involved, relying on an in-depth assessment of the
entire family situation and other relevant factors, and bearing in mind the
children’s best interests (para 53).
In this regard, the Court observes
that domestic courts had attached decisive weight to the expert findings
pointing to the negative impact that information about the applicant’s
transition would have on the children’s psychological wellbeing. However, so
the Court continues, these reports had several weaknesses: the experts had
reached their conclusions after acknowledging the lack of reliable research
evidence on the issue; they had referred to a single academic paper, which had
been ‘highly criticised’ in the academic community; at the same time, the third
party interveners (Transgender Europe and ILGA Europe, Human
Rights Watch, and the Human
Right Centre of Ghent University) had identified multiple studies proving
fears about the negative impact of a parent’s gender transition on a child’s
development to be groundless; finally, the reports lacked information on how
the applicant’s transition constituted a risk for the children’s psychological
development or how this risk could have been alleviated (paras 54-55).
According to the Court, these flaws
should have urged domestic courts to verify the reliability and the quality of
the expert reports. On the contrary, domestic courts had placed the contested
findings in the heart of their decisions in the absence of any demonstrable
harm to the children and, in so doing, they had failed to undertake a close and
individualised assessment of the specific circumstances and denied due weight
to the rights of the applicant (para 57). The Court also observed that domestic
courts had applied the most restrictive measure – i.e., depriving the applicant
of any contact with the children – without the necessary caution and concern
for the irreparable consequences that the passage of time can have on
parent-child relationships (para 58). In light of the above, the restriction
complained of was considered not necessary in a democratic society and a
violation of Article 8 was found.
The Court then turned its attention
to assess the applicant’s complaint under Article 14, according to which her gender
transition had served as the sole ground for the contested restrictive measure.
It began by establishing that, indeed, the applicant’s gender identity had been
a ‘decisive factor leading to the decision to restrict her contact with her
children’ (para 75). Despite the disclaimer made by domestic courts (i.e.,
their decisions were not based on the applicant’s trans identity per se),
it was inevitable for the Court to conclude that her gender identity was
omnipresent during national proceedings and at the centre of deliberations. The
applicant had therefore been treated differently from cis parents who seek
contact with their children and, according to the Court, there were no
convincing and sufficient reasons for this differential treatment. The domestic courts’ decisions – so the Court
concludes – were indeed based on ‘the alleged possible negative effect of the
applicant’s gender transition on her children’, rather than on a careful
evaluation of the possible harm, the nature and severity of the restriction
complained of, and the repercussions it might have had for the children’s
development (para 78). Hence, the decision at stake amounted to discrimination
in violation of Article 14.
Trans
Parenthood as a Fast Emerging Issue: Retrospects and Prospects
One could think
that trans parenthood is a novel topic of legal relevance reflecting recent
social and scientific developments. However, if regard is given to the ECHR
case-law, the Court entered this terrain as early as in 1997. In the case of
X,
Y and Z v UK, the Grand Chamber clarified the scope of obligations
arising from Article 8, which was interpreted not to require national
authorities to register a trans man as the father of his child, born to the
applicant’s female partner through sperm donation. A bit more than ten years
later (and significant case-law developments in respect of the related yet
distinct issue of legal gender recognition), a different issue concerning trans
parenthood, i.e. the refusal to grant contact rights to a trans mother with
respect to her child born prior to transition in the context of an (ended)
heterosexual marriage, reached Strasbourg. In P.V.
v Spain (2010), the Court found that the applicant’s trans identity had
not been a decisive factor in domestic proceedings. The decision to deny
contact rights to P.V. was – in the Court’s view – grounded on the child’s best
interests and, therefore, no violation of Article 8 taken in conjunction with
Article 14 was found.
A.M. and Others v Russia
stems from similar factual circumstances, but the Court’s assessment reaches a
different conclusion: domestic courts had no concrete evidence demonstrating
any potential damage deriving from the applicant’s gender transition to the
children to justify restricting her parental rights, thus breaching Article 8
alone and in conjunction with Article 14. This judgment brings together legal
principles arising from two established strands of case-law: (1) that on the
regulation of parent-child relationships following separation/divorce, whose
influence is particularly traceable in the first part of the judgment
(complaint under Article 8); (2) and, the case-law on discrimination on the
ground of sexual orientation in the allocation of parental rights, which
appears quite prominently in the Court’s assessment relating to Article 14.
Starting from the former, the judgment in A.M. and Others reiterates the
importance of supporting the continuation of parent-child relationships through
direct contact even after parental separation, thus resorting to restrictive
measures with exceptional caution (e.g., Elsholz
v Germany). It follows that, when deciding on restrictions of
parental rights and contact, domestic courts should – unlike Russian courts in A.M.
and Others – conduct an individualised and fact-based assessment of the
entire family situation to determine what arrangement would serve the child’s
best interests (e.g., Zaunegger
v Germany). This line of reasoning is continued and its
non-discriminatory dimension is further developed in the Court’s analysis under
Article 14.
The second part of the judgment
brings to our mind the judgment in Salgueiro
da Mouta v Portugal (also explicitly referred to by the Court),
concerning the refusal to grant parental responsibility to the (biological)
father of a child born from a previous heterosexual marriage because he had
entered a same-sex relationship after divorce. In that case (1999), facilitated
by the homophobic tone of the justifications adduced by the Lisbon Court of
Appeal, the Court concluded that domestic courts had made a distinction based
on sexual orientation which was not acceptable under the ECHR and had therefore
violated Article 8 taken in conjunction with Article 14.
Salgueiro and A.M. and
Others share what could be named an ‘anti-stereotyping attitude’. The Court
proves willing to contest stereotyped notions of LGBT parents which consider
them a danger to their children’s psychological development and, more generally,
unfit parents. Yet, it does not talk openly of ‘stereotypes/ing’. In A.M.
and Others, these concepts appear only in the passages outlining the
content of the third-party submissions – which indeed used and insisted on the
harm of stereotyping (paras 69 and 71) – but are not explicitly integrated into
the Court’s own reasoning. Moreover, the judgment does not display a contextual
approach that acknowledges the widespread discrimination and stigmatisation that
LGBT persons and their families have been suffering in Russia and beyond, nor
it qualifies trans persons as a ‘vulnerable group’ in society – as advocated by
the Human Rights Center of Ghent University. In sum, the Court refuses to
accept general considerations as a means of adjudicating the allocation of
parental rights, but does not seem ready to fully embrace the language and the
systematic breadth that an anti-stereotyping
approach would entail.
In 2012,
Hodson warned us of Salgueiro’s potential limited relevance for LGBT
families and their children. In spite of sexual orientation being a crucial
issue in this case, the parent-child relationship at stake nevertheless
concerned a biological father and his child born into a heterosexual marriage. As
I have recently argued, Salgueiro might have therefore been
primarily approached as a case concerning the refusal of parental
responsibility to a biological and divorced father, rather than gay fatherhood.
And, as such, it ‘broke no new ground in terms of recognising LGBT family
units’ (Hodson, p. 511), nor in terms of rethinking conceptions of parenthood
and, more specifically, fatherhood.
I wonder whether similar reflections
could be extended to A.M. and Others v Russia. In other words, how much
have the facts of the case – in particular, the child being born into a heterosexual
marriage and being genetically related to A.M. – weighted in and determined the
final outcome? This is not to say that these circumstances should not have
given weight. Quite the contrary, cases like A.M. and Others can certainly
benefit from the Court’s well-established jurisprudence which requires a
careful and fact-based assessment of the child’s best interests when
determining post-separation/divorce arrangements. At the same time, however,
the factual possibility to rely on this case-law might lead to less substantial
involvement on the part of the Court in the discriminatory aspect of the case
and, when the factual circumstances do not allow for this possibility, LGBT
families risk being left with lower or no recognition and protection of their
rights (see for instance, Gas
and Dubois v France and X
and Others v Austria on second-parent adoption).
This risk is not hypothetical at all
in the context of trans parenthood before the ECtHR. As much as trans
parenthood can be considered an old jurisprudential topic in Strasbourg (X,
Y and Z v UK, 1997), we are witnessing a growing number of applications
reaching the Court over the last few years. Some raise complex questions
concerning the determination of legal parenthood in cases of procreation
post-transition. For instance, is designating a trans man who gives birth to
his child as ‘mother’ on the child’s birth certificate compatible with Article
8 alone and in conjunction with Article 14 (O.H.
and G.H. v Germany)? Or, is the refusal to register a trans mother who
is genetically linked to her child as the latter’s ‘mother’ on her birth
certificate in breach of Article 8 alone and in conjunction with Article 14 (C.V.
v France and M.E.D. v France)? How the Court will address these
questions will more clearly reveal the extent to which the Court is ready to
break new grounds in terms of recognising LGBT family relationships. In such
cases, indeed, no ‘refuge’ can be found in the case-law on post-separation/divorce
arrangements and, therefore, if the Court wishes to continue along the same
line as in A.M. and Others, this will inevitably require the extra
effort of pushing the boundaries of parenthood/motherhood/fatherhood
away from conventional, heteronormative and cisnormative schemes.
