Human Rights Council members should use the review of Ukraine under the UPR to raise serious concern about a draft law pending in the Ukrainian parliament that would criminalize the “promotion” of homosexuality, to call on the parliament to reject the draft law, and on the government to oppose it. The Human Rights Council has a unique opportunity to have an impact on this urgent situation, as the second reading of the draft law is preliminarily scheduled for early November.
Law No. 8711 “On Introduction of Changes to Certain Legislative Acts of Ukraine (regarding protection of children’s rights in the safe information sphere)” proposes to ban any production, printing, distribution, or publication of content “promoting” homosexuality; the use of any media, to “promote,” homosexuality; and the import, production or distribution of creative writings, cinematography, or video materials “promoting” homosexuality. The draft law makes certain breaches of the law criminal offences and provides that fines or prison sentences of up to five years may be imposed on those who violate it.
The draft law is a blatant breach of Ukraine’s international obligations, including its obligation to ban discrimination and protect the rights to expression, association and peaceful assembly. If enacted, the bill could deny people in Ukraine, including those under the age of 18, access to essential information about their health and safety and deny children the right to seek, receive and impart information of any kind. It further creates a hostile environment of state-supported discrimination against the lesbian, gay, bisexual and transgender (LGBT) people and effectively criminalizes the work of LGBT human rights groups.
In March 2012, the UN High Commissioner for Human Rights stated that laws that are applied in a discriminatory way to prosecute lesbian, gay, bisexual and transgender people breach international human rights law and cause unnecessary suffering, reinforce stigma, fuel violence and undermine efforts to stop the spread of HIV/AIDS.
International standards
- Discrimination
If adopted, the draft law would violate Article 26 of the International Covenant on Civil and Political Rights (ICCPR), which provides for equality before the law and equal protection of the law. In 1994, the UN Human Rights Committee held that “sexual orientation” is a status protected from discrimination under the ICCPR.Ukraine is additionally bound by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which prohibits, in article 14, discrimination in the enjoyment of ECHR rights on “any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Protocol 12 to the Convention prohibits discrimination in respect of all legal rights.
On March 31, 2011, the Committee of Ministers of the Council of Europe unanimously adopted a set of recommendations to member states, including Ukraine, on measures to combat discrimination on the grounds of sexual orientation and gender identity. The recommendations promoted tolerance and respect for LGBT people and encouraged member states to take measures to prevent restrictions on the effective enjoyment of the rights to freedom of expression and peaceful assembly.
- Freedom of association, expression and peaceful assembly
If enacted, the draft law will impose disproportionate restrictions on basic freedoms of expression, association and peaceful assembly, in violation of articles 19, 21 and 22 of the ICCPR and articles 10 and 11 of the ECHR.
- Rights of the child
The draft aims to ‘protect the rights of children’ by prohibiting all forms of public activity that are ‘aimed at disseminating positive information about homosexuality which may adversely affect the physical and mental health of children’. The draft law in fact violates Article 13 of the Convention on the Rights of the Child, which explicitly guarantees children the right to seek, receive and impart information of any kind. By restricting the publication and dissemination of materials related to gender identity and sexual orientation, the bill would threaten the health and well-being of all persons in Ukraine, including children, by denying them access to essential information about social activities, support networks and health-related issues, including accurate information about HIV and AIDS.
The Human Rights Council should:
- Urgethe parliament of Ukraine to reject draft law No. 8711 because it violates UN standards prohibiting discrimination and upholding the right to freedom of association, expression and assembly and also violates, not protects, children’s rights.
- Urge Ukrainian authorities to ensure individual human rights guarantees against discrimination and uphold its international obligations to protect the fundamental freedoms of expression, association and peaceful assembly.
