In a victory for a transgender parent’s right to maintain contact with her children, the European Court of Human Rights ruled on July 6 that Russia’s denial of her visitation violated her rights to family life and freedom from discrimination.
The woman, known in court documents as A.M., had two children with her spouse before they separated. After a local court legally recognized her gender transition, A.M. continued to regularly see her children for 17 months until her former spouse obtained a court ruling to cut off visitation. The former spouse argued that any further contact with the children would harm their mental health, distort their morals and perception of family, lead to bullying at school, and violate Russia’s “gay propaganda” law.
This contorted reasoning is familiar in Russia, where anti-LGBT animus is regularly justified on child protection grounds. There is no basis for such claims but instead ample evidence that “gay propaganda” laws harm children.
The European Court found that the decision to restrict A.M.’s contact with her children was made “in the absence of any demonstratable harm to the children” and was not based on a “balanced and reasonable assessment.”
The court is right. A.M. was treated differently from other parents because she is transgender. “[T]he inescapable conclusion is that her gender identity was consistently at the centre of the deliberations concerning her and was omnipresent at every stage of the judicial proceedings,” the European Court observed. Restricting A.M.’s contact with her children because of her gender identity was discrimination, pure and simple.
Disappointingly, though, the European Court declined to consider the claims A.M. brought on behalf of her children’s right to family life, reasoning that only the custodial parent could do so. The Russian government didn’t object to A.M. raising those claims. By throwing them out on technical grounds, the court effectively gave no consideration to the children’s rights and made no effort to elicit their views.
The European Court can do more to protect the rights of children whose interests may be at odds with that of their custodial parents. But its analysis of the parental rights at stake is spot on, and in this case, rightly cause for celebration.