“Laws alone cannot secure freedom of expression; in order that every man present his views without penalty there must be spirit of tolerance in the entire population.” Said Albert Einstein. In Russia though, some laws censor the spirit of tolerance and therefore go against their primary goal. On the 29 of February of 2012, a law against “gay propaganda” has been adopted in second reading by a vote of 29 to 5 with one abstention and took effect 10 days after, after the final decision of governor Georgy Poltavchenko. We may refer to this law as “law against gay propaganda”, “anti-gay law”, “anti-gay bill” or more humouristically, “the gay-gag law”. The author, Vitaly Milonov, a deputy from the Russian political formation “United Russia” justifies the passation of the law by the attachment of the Russian people to traditionnal values, public morality and justification of protection of minors. He also declares that “the sin of sodom is repellent to him”.
In a country which opened little by little on individual freedoms since the collapse of the USSR (homosexuality was depenalised in 1993, and stopped being considered like a desease in 1999), a revival of conservatism is now noticeable. The law against gay propaganda that forbids any public act that promotes homosexuality is one demonstration of this political and social development among a country whose orthodox faith has become again a strong value within the population and the government in power. Although it is difficult to understand why such a law would be necessary when it is widely known that homosexuality is not a perversion and when many countries have adopted gay marriage, it is even harder to understand the basic meanings and implications of this law. How can we understand the wording “gay propaganda” and the consequences it might, or not, imply ? Who will suffer from this law and who will benefit from it ?
We shall develop those questions by analysing, on the first place, the wording of the law in order to be able to approach an understanding of its supposed consequences. We will then analyse the democratic and Human Rights implications hidden behind a law that fails many juridical tests. Eventually, a non-exhaustive lists of actions taken by LGBT associations and other institution will be presented.
I. Comprehending the law and its consequences.
This new amendment to the law of Saint Petersbourg on “Administrative Offenses” fails to clearly explain the implications of this law and how it can be applied. The broad and vague wording of both the articles 7.1 and 7.2 cause trouble to understand how such a law can or will be applied, and on what circumstances the accusations will be based.
A. Understanding the bill.
According to Human Rights Watch, “The bill’s language is so vague and broad that it could lead to a ban on displaying a rainbow flag or wearing a T-shirt with a gay-friendly logo or even on holding LGBT-themed rallies in the city”. The article 7.1 establishes that “Public actions aimed at propaganda of sodomy, lesbianism, bisexualism, transgenderism amongst minors incur an administrative fine » and follows « As public actions aimed at propaganda of sodomy, lesbianism, bisexualism, transgenderism amongst minors in this article should be understood activities on purposeful and uncontrolled dissemination of information in a publicly accessible in a way that can be harmful to the health, moral and spiritual development of minors, including forming in their mind a distorted perception of social equality of traditional and nontraditional marital relationships.».
Better definitions of the words used may be required to have a better understanding of the targetted purpose. Therefore, propaganda means « information, especially of a biased or misleading nature, used to promote a political cause or point of view. » This definition is then ecnouraged by the use of the termination « ism » which, although it is accepted to speak about « homosexualism » in Russian, in English, the term « ism » is generally used for an ideology (federalism, socialism). As if homosexuality was an ideology, a way of life that should be promoted as communism used to be promoted. Furthermore, the word « sodomy » used instead of « homosexuality » is a controversial metonymy that reduces male homosexuality to a sexual act, depriving it from its essential affective aspect. What is, therefore, prohibited ? The promotion of « homosexualism » or « sodomy » ?
This law would therefore prohibit all positive statement about homosexuality delivered to minors. And yet, how is it possible to avoid the presence of minors among public demonstrations ? Consequently, following strictly the meaning of the first article, all kind of positive statement on homosexuality on the public space will be prohibited unless it can be proved no minors could directly or indirectly access the message delivered. Also, it must be explained what is understood by « public action »
B. Consequences on LGBT organisations, individuals, media and culture
Human Watch warns : ‘Pride parades, literature, or NGOs that openly serve LGBT people will be wiped out, or pushed underground.’ As seen above, the vague wording of the law fails to engage clear explanations on how it could affect the LGBT community, media and culture. Its consequences could be damaging on a much larger scale than what the text merely suggests. On the first place, it is interesting to focus on the wording «public action ».
A Public action is defined as any oral, written or imagery expression delivered on the public space or during a public event (concert, rally…). Therefore, LGBT Organisations and activists are the first affected subjects as the law directly prohibits LGBT rallies, piquets or demonstrations. As this law was recently implemented, it is more reliable to discuss the consequences of similar laws in Ryazan (implemented in 2006), Arkhanglesk (2011), Kostroma (February 2012) and more recently in Novosibirsk (June 2012). In Arkhangelsk, the judge, Marina Glebova fined 3 LGBT activists 2,000 roubles each (€50, $66), the maximum penalty for having protested in the street with slogans such as « Gay is normal ». In Saint Petersburg, 73 people have been arrested under the law for protesting peacefully or displaying rainbow flags but only one has been prosecuted.
On the 7th of July 2012, an unsanctionned gay pride was held in Saint Petersburg and 5 people were arrested, still waiting for their verdict to be announced. The reason Police gave when asked about those arrestations was that minors were or could have been present in the places where the LGBT demonstrations were held. Those arrestations have been condemned by local LGBT organisations or even by parts of the Russian Justice who contested these advocacies, saying, as we shall see further, that the new law could not offer a reliable juridical base for those prosecutions since it does not fit the most basic juridical requirements. They were joined on their judgement by Human Rights Watch who said : “The bill’s language is so vague and broad that it could lead to a ban on displaying a rainbow flag or wearing a T-shirt with a gay-friendly logo or even on holding LGBT-themed rallies in the city”.
The law against gay propaganda also affects media and culture. The ILGA (International Lesbian and Gay Association) stated in a document on analysis and recommendations on homosexual bans published in March that «[the law] will impact a wide range of daily activities, including public health messages, cultural events such as film festivals and book fairs, media reporting on national and international issues, education on sexual and reproductive health, and even commercial advertising. The Russian LGBT Network also stated that local media had stopped covering its activities because they were afraid of being sued. In many cases, owners of local media would not be in a position to pay fines if found guilty of violating the law. Although no media have been yet sued for displaying information on LGBT people, artists are starting to be severely watched on their behaviour towards LGBT people.
Vitaly Milonov, the man behind the bill against “promoting sodomy, lesbianism, bisexualism and transgenderism to minors said to the “Saint Petersburg Times”: “When singers show their sexual parts to children — excuse me but I believe it’s an insult to the children of St. Petersburg. At 14 they are not yet legally competent, and perhaps they will treat it as something positive. [Rammstein] are music idols for them, and they are ready to copy their ways and habits. But we don’t want our children to behave in such a manner.” When asked about his opinion on the German industrial rock band Rammstein’s gig in Saint Petersurg held before the law was implemented, where the group shammed a sexual act between two men. More recently, Madonna was arrested under this law for having openly supported the LGBT community during her concert: “Please show your love and appreciation for the gay community […] they deserve to be treated with respect, love and compassion” she said, before displaying videos showing men kissing on giant screens, and a rainbow flag on stage. Acts for which a Nationalist group called “The great united Russia” took this case on trial and condemned the singer to pay a $10,000,000 dollar fine for “public outrage”. Madonna’s advocates hope to escape the sentence as the concert was not recommended for minors, a detail that could find itself useful to get round the law which supposedly only prohibits “gay propaganda” towards minors.
II. A Homophobic law, A political scandal.
The law claims to itself to protect minors against perversion and immorality. A juridical analysis show that it fails to fill in the obligation it is setting to itself and that, on the contrary, it will have negative effect on young people by depriving them of important information and will also deprive a whole community to benefit from its freedom of speech.
A. A deeply Homophobic law hidden behind the justification on public morality.
Protecting minors against “perversion” is the openly admitted reason for which Milonov put the first impulse towards the signature of the law, his reflexion is mainly based on morale and etiques led by the Orthodox Church despite of the fact that Russia is a secular country. It also comes from many misunderstandings according to which homosexuality is a desease or a perversion that could be passed on to children. This law against gay propaganda, although it claims itself to protect children, will affect them as it will prevent all kind of organisationnal campains on sexual health and education, on promotion of tolerance and fight against homophobia. And as the law also affect media, they won’t be able to submit advertising on this topic either.
Consequently, this law is mainly likely to reinforce bullying of LGBT teenagers in schools, discrimination in the work places and undermine the mental and physical well-being of young people, as fighting against sexually transmitted desases is therefore being a much tougher task to carry out. This law also acts as a censorship on cultural goods and services such as books, songs, movies or painting and imageries, thus lowering the level of culture within the region. Teachers will be less inclined to answer a question on sexual orientation or gender identity as they could be sued for doing so. Companies who use LGBT symbols and people for their advertising policies may also be severely impacted.
According to the European court: « Public morality as used by States to defend “homosexual propaganda” bans does not pass the tests of necessity and proportionality because there is no evidence that public statements concerning same- sex families or relationships or sexual orientation or gender identity pose any kind of threat to public morals. » As a matter of fact, the European Court of Human rights is quite skeptic on justification of public morality as Russia already benefits from laws that protect children from being exposed to pornography and crude sexual acts or violences. The argument of the state is therefore rejected by international law and the European Court as there is no evidence that the call for tolerance towards sexual minorities would involve obscenity or sexually provocative behaviour and that the visibilty of sexual minorities constitute an offence for children’s mental health.
B. A law that stands against Human Rights and reveals a democratical scandal.
Laws on « homosexual propaganda » discriminate people on the basis of their sexual orientation or gender identity and therefore targets one particular group of people : gay people as opposed to heterosexuals . Although the European Council on human Rights to which Russia belongs is deeply disaproval of discriminations based on the sexual orientation. The Russian government also stated about the LGBT demonstrations that « It was not the behaviour or the attire of the participants that the authorities found objectionable but the very fact that they wished to openly identify themselves as gay men or lesbians, individually and as a group. And the authorities would reach their limit of tolerance towards homosexual behaviour when it spilt over from the strictly private domain into the sphere shared by the general public. » Therefore, the government admitted that it was not the way gay people behave or dress that they find objectionnable, but the very fact that they claim their sexuality. But deconsidering a group of people is deeply discriminatory. Adding to that, depriving a certain group of people or a social movement to demonstrate peacefully goes against the freedom of speech.
Following the articles 19, 21 and 22 of the International Covenant on Civil and Political Rights, rights of freedom of speech and peaceful assembly are guaranteed. The International law protects the freedom of speech even if its discourse is highly offensive or unpopular. On this regard, it fails International law, as the argument of the state according to which this law follows the flow of public opinion in unreceivable. The law also fails three basic juridical requirements. First, it does not expose the restrictions or precisions of what is implied by gay propaganda, as seen above, the law does not specifically indicate what conduct is prohibited which prevents individuals to adapt their behaviour accordingly. It also fails both test of necessity and proportionnality, according to both European and international law, a law must target a threat that is real, not hypotetical, and therefore be « necessary ». A law must also answer a widely demanded issue and be conducted under a forcing social demand, in other word be « proportionate to the aim pursued ». This law fails those three basic requirements : precision, necessity and proportionnality.
It appears, on the contrary that this law has been implemented under the impulse of the Russian political elite only, widely represented by « United Russia » the party in power. In the Saint Petersbourg city’s parliament, 26 of the 50 seats are taken by United Russia’s majority along with the liberal democrats. On february the 29th passed in the 3rd reading of the bill : 29 deputies voted in favor of the bill, 5 voted against the bill, and 1 abstained. 15 deputies did not vote (either abstained, or were absent). Member of the Board of Coming Out and Chairman of Russian LGBT Network, Igor Kochetkov declared: “I am ashamed of St. Petersburg, ashamed of the deputies. We know that the majority of them realize very well the absurdity and unjust nature of this law. But those who voted in favor did not vote according to their conscience, but according to their “duty”, because this is what their superiors told them to do. They are not able to vote according to their conscience as most of them were given their deputy seats not by the electorate will, but by those in power. Everybody knows how the elections for the Legislative Assembly went on December 4th.
Amnesty International also revealed that during the public hearings, a document on homosexual’s “transmitted sexual deseases and perverse behaviours” was distributed to the audience, mainly composed on law-makers, Clergymen and sexologists chosen by Milonov in order to disparage gay people, using “scientifical reports” based on no empirical evidence. On the day the law was implemented, Communications manager of Coming Out, Olga Lenkova said: “The voting results of course did not come as a surprise to us. Already on Friday, after the so-called ‘public’ hearings, it was clear that neither Mr. Milonov, nor his colleagues in the United Russia were willing to hear any of the arguments that lawyers, scientists, or human rights activists had to make. The fact that they ignored even the Legal Department of the Legislative Assembly itself, who criticized the bill as not defining the “objective side of the violation”, is a clear indication of that. LGBT organization Coming Out will definitely continue the struggle against the law and call on the Governor to not sign this unconstitutional piece of legislation that incites hatred against a social group.”
Therefore, the law fails juridical tests and harms a whole part of the population. It is only based on the ideology of a political elite who uses public opinion as a shield to impose its own belief.
III: Fighting Against the law.
A. Local Opposition movement.
LGBT Organisations quickly reacted to the homophobic law and implemented a local opposition. Firstly, “Coming Out” organised two street actions: the “Day of Silence” on April the 7th where two activists were arrested under pretext of “propaganda” for holding signs promoting tolerance to gays and lesbians, and the International day against homophobia on May the 17th. The action took form of a mass rally. To promote constructive dialogue with the administration and provide protection for participants, Coming Out procured permit from city administration (strategy is to apply for permission to several city districts at once). 100 people participated in the demonstration, 20% – straight allies. 2000 educational flyers about homosexuality not being a disease distributed. Members of mainstream human rights organizations spoke of inadmissibility of state homophobia.
Coming Out applied for city permission to organize street demonstrations for Day of Silence (April 7) and International Day against Homophobia (May 17) to 7 administrative districts. It was denied by Central district administration under pretext that “slogans planned to be used action will constitute propaganda of homosexuality”. Central District Court declared the denial unlawful: according to the judge, the administration did not have the competence to judge whether the planned rallies constituted “propaganda of homosexuality” before they took place. She also drew administration’s attention to the Federal Law “On Assemblies”, according to which the administration has no authority to deny a public rally, only to suggest a different time and place. This became the first legal victory against the application of the law (http://www.comingoutspb.ru/ru/news/viigrali_sud).
Before the law was implemented, public hearings were held by Vitaly Milonov on the demand of Coming Out. Even though the hearings were arranged so that most of the public and experts were members of clerical, nationalist, and other right wing organizations, Coming Out was able to “introduce” a number of reputable psychologists, lawyers, sociologists, sexologists, human rights defenders and even a mother of a gay son as experts to speak at the hearings. Because the event was covered extensively in the media and Coming Out made and distributed a video (http://www.comingoutspb.ru/ru/news/videoslushania), these hearings became a good platform for presenting arguments of both sides to the public.
Coming Out also initiated 5 evalutaion of the law by legal experts, linguists, psychologists and physicians from Saint Petersburg Universities, schools and independent institutes. Coming Out also addressed a newly elected ombusdman, Alexander Shishlov, from the Yabloko party for him to collaborate with our organisation to publicise on the LGBT movement and against the homophobic bill and crimes targetting LGBT people. In June, the Russian LGBT Network, Coming Out and a coalition “For Fundamental Rights In Russia” of Russian and International Human Rights groups discussed violations of freedom in Russia in a joint statement for the EU-Russia summit. Coming Out sought to establish precedents for convictions under the “propaganda” which could be appealed through the national court system and then ECtHR by organizing single person demonstrations with slogans about homosexuality being normal. However, no Coming Out activist was actually charged or convicted under the “propaganda” law.
Coming Out also participated in several official city programs which led the organisation to participate in the official youth exchange program for human rights and cultural organizations between sister-cities of St. Petersburg and Hamburg, supported by the Committee for Youth Politics and Relations with NGOs. As a result of lobbying by Coming Out and Side by Side LGBT film festival, the draft Memorandum on Cooperation between Hamburg and St. Petersburg includes a section on LGBT. It will be finalized by the Committee in the fall of 2012. Coming Oit conducted a montiroing program from September 2011 and on to collect and analyse information on violences, discriminations against LGBT people as well as monitoring of media with regards to hate speech towards and representation of LGBT. Coming Out also lobbied international structures such as the European Union, the Council of Europe, international human rights organisations to apply pressure on Saint Petersburg athorities.
Coming Out also addressed AllOut.org to launch a petition signed by 250,000 people. Coming Out was also present to various gay prides and LGBT meeting in Europe to present the situation on the propaganda law. Coming Out established a national and international medias mailing list to distribute photos and press releases. 36 press releases were sent to 150 medias, 2 press conferences were held on the topic of gay propaganda and around 25 to 30 interviews were given to Russian and International medias. Over 50 articles have been written about Coming Out during the past twelve months, most of them being on the side of the LGBT movement. Coming Out also launched a public campaign against homophobia by organising seminars, street actions or distributing post cards and posters. The organisation took part in several anti-xenophobic, pro-democratical and pro-human rights rallies and events.
B. International Opposition Movement.
The passation of the anti-gay propaganda law aroused a wave of international reactions. International institutions, Non Governmental Organisations and individuals announced their concern about the situation of LGBT people.
International LGBT Organisations were the first one to react upon the new law. The ILGA (International Lesbian and Gay Association), linked to the European Council on Human rights reported both their concern and constructive arguments in a document “Homosexual Propaganda Bans: Analysis and Recommendation”, which brings about counter arguments, analysis and juridical explanations on the homosexual bans recently being implemented all over Europe. AllOut.org, an internet based organisation fighting for LGBT rights all over the world came directly in touch with Coming Out to realise a web video calling against discrimination and to create a petition against the law, signed by 250,000 people. Independent organisation such as Amnesty International, the international organisation for Human Rights, ActUp, a French LGBT organisation, Human Right Watch or Frontline Defenders also publicly announced their concern on the fresh upsurge of discriminations in Russia.
The delegation of the European Union to the Council of Europe also conveyed a statement calling on the re-evaluation of the homosexual bans in eastern european countries (including the Saint Petersbourg oblast), stating: “The EU is concerned by intolerance and discrimination against lesbians, gays, bisexuals and transgender persons within the space of the Council of Europe. The European Union condemns every expression of homophobia and transphobia and considers these as unacceptable attacks upon human rights. Unfortunatelly, apart from the council of Europe, very few international official institutions voiced their opinion or their concern on the law. No western government publicly announced sanctions or warnings towards the Russian government or the Saint Petersbourg parliament. One may think this is due to the strong economical links between Russia and its European interlocutors. LGBT defenders would have expected more from France or the United Kingdom, as David Cameron and François Hollande claimed that the depenalisation of homosexuality and the fight against world wide homophobia was a prioritary fight.
A couple of individuals publicly criticized the law. The mayor of Dublin, Andrew Montague is the only official politician who sent a letter to the governor of Saint Petersbourg : Georgy Sergeyevich Poltavchenko. In this letter sent on the 22nd of February 2012, Andrew Montague « expresses his concern about the human rights implications and the negative impact on people conveyed by the new law ». Also, among international cultural figures and celebrities, Madonna is the only known person who publicly denounced the law. During her concert in Saint Petersburg on the 9th of October, she distributed bracelets to everyone who wanted to show their support to the LGBT community and then raised her voice in the middle of show saying : « the gay community deserves to be treated by dignity, love and compassion, and there is no one to use religion to exclude a group of people, because this is not what religion is about ».
A speech for which she has been both celebrated and criticised. An organisation of traditional families layed charges on her and sued her for 333million roubles for having commited « gay propaganda » and for having deeply insulted their « Orthodox and traditional values ». The doctor Nedzelsky, a representent of the modern Christian Church criticised this decision and revealed that the fine was based on no juridical evidence but that the only reason why she had been sued for 333million roubles was because it is half of 666, the number of Madonna the satanist. He took up his arms during a live TV show in which Vitaly Milonov was invited and accused him to manipulate the values of religion to his benefit.
A very efficient and determined local oposition has been held by LGBT communities which still suffer from a lack of visibility outside Russia even if their action is being more and more mediatised. One might regret the timid international opposition, which is blocked by many economical and diplomatic barriers.
As a conclusion, this controversial law has been extremely criticised for its discriminatory inclination and dubious consequences, when people are fined a scandalous amount of money under no juridical support. The anti gay law suffers from a vague wording, unclear consequences and juridical basis, as well as being deeply homophobic, anti-democratic and harmful towards an important part of the population. It also reveals a much more concerning issue : A new segregation for LGBT people, a population that already suffers from discrimination in the work places, within families or friends and who lives in a country whose traditional values favour its exclusion.
Traditions and morals are also the spearhead of a political elite who use it enforce such laws. It is very much in their interest to put a censorship on LGBT people in a time when demonstrations against the government in power are getting bigger and more violent. LGBT people are usually associated with all the civil rights movement and fight against the patriarchal and sexist regime installed nowadays. This law and the whole fight of censorship against LGBT people is noting more than a political manoeuvre. It is in the interest of a regime who starts to be threatens to elect an ennemy within or outside society. The excuse of traditionnal values is an conscious or unconscious given reason to blame LGBT people. It is also a way to preserve Russia’s traditonnal values from the « perverse influence » of western countries which might « endanger » Russia.
Hannah Arendt once said « When a power decide to divide a society by choosing its victim and its tormentor, it means that this power is starting to slide towards a totalitarian regime ». Fears about Russia becoming a real dictatorship are justified, especially after the « Pussy Riot scandal », which made clear to the whole world that Putin’s regime was starting to strongly put its grip on the Russian society. In order for Russia to become a true democracy, the fight through dark times will be tough, but Russia has already managed to get itself through darker times. This time, hope lies in LGBT people, women and in everyone who want to look at Russia through an open and modern eye.
“Law in Saint Petersburg” – Legislative Assembly
Как стало известно проекту – GayRussia
Written Declaration on Russi, June 2012 – Comittee of European Council
Explanatory Note to Draft Federal Law (Homosexual Propaganda) – Federal Government
Briefing on Russia propaganda of homosexuality draft NGW 4/3/2012 – Federal Government
Explanation on the law – Federal Council
EU statement on RF MD UKR 19 6 12 – Council of Europe
Letter of Mayor of Dublin to Georgy Poltavchenko – Andrew Montague
Joint briefing paper ICJ IE propaganda bans 25 June 2012 – ILGA
List of media publications – Coming Out
Vykhod Campaigns against law – Coming Out
Media jan-march 2012 –Coming Out
Coming Out Work and Results 2012 – Coming Out
“LGBT rights issues are gaining momentum in the offcial discourse” – AllOut