By Alice Margaria, Senior Research Fellow, Department of ‘Law and Anthropology’, Max Planck Institute for Social Anthropology
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.