In A.M. and Others v. Russia, the European Court of Human Rights (“ECtHR”) ruled that – by terminating all contact between a trans woman and her children without a “balanced and reasonable assessment of the respective interests on the basis of an in‑depth examination of the entire family situation and of other relevant factors” – the Russian courts had violated that individual’s rights under arts. 8 and 14 of the European Convention on Human Rights (“ECHR”).
The case concerned a trans individual, AM (“the applicant”), whose former spouse applied to restrict her parental rights, including contact with their children (MM and KM). The first instance court requested a “forensic psychiatric, sexological and psychological assessment” of AM and her children. The resulting report agreed that AM’s parental rights should be restricted, suggesting that “contact…and information on the gender transition would have a negative impact on their mental health and development.” The authors reached this conclusion despite acknowledging that there was a “lack of research on the upbringing of children in families where one of the parents had undergone gender transition.”
Drawing upon the expert evidence, the Court terminated contact between AM and her children. Suggesting that “the interests of the children and their psychological and mental health” was its sole concern, the Court stated that the applicant’s “transsexualism” (which it referred to as her “disorder”) could not, by itself, restrict parental rights. However, having regard to the supposed “long-term psychotraumatic circumstances” and “negative effects on… mental health and psychological development” which AM’s transition would create for her children, the Court held that there was sufficient justification for ending contact. The decision was upheld on appeal.
The ECtHR (Third Chamber) noted that, in deciding to terminate contact, the Russian court had emphasised the negative findings of the expert report, even though the authors had conceded a lack of evidence on trans parenting and had offered no “indication of how the information about the applicant’s gender transition represented a risk to her children’s psychological health and development.” By agreeing to restrict AM’s parental rights without sufficient scrutiny of the evidence, the domestic courts had not shown that terminating contact was necessary in a democratic society and had violated AM’s rights under art. 8.
The ECtHR also found a violation of art. 14 (read with art. 8). In terminating contact, the Russian courts failed to “conduct their assessment with the required scrutiny”, nor did they comply with established national practice for restricting parental rights. Instead, without adducing “demonstrably convincing and sufficient reasons”, the domestic courts had differentiated AM from parents “whose gender identity matches their sex assigned at birth.” In so doing, they “singled [AM] out on the ground of her status as [a] transgender person and made a distinction which was not warranted in the light of the existing Convention standards.”
The decision in AM is a welcome addition to the ECtHR’s growing jurisprudence on trans families. Since 2002, the Strasbourg case law in this area of law has been a mixed bag. Although the ECtHR has affirmed the right of (at least certain) trans individuals to marry in their lived gender and to obtain gender recognition without compromising their fertility, it has also confirmed that State Parties can limit marital status as a pre-condition for amending formal gender. In the near future, the ECtHR will have the opportunity to extend its engagement with trans family issues, reviewing (among other topics) the legal position of trans men who give birth (relevant to the recent McConnell litigation) and terminating foster agreements (allegedly) due to the gender identity of parents.
AM also represents a significant development for trans non-discrimination rights. The ECtHR has previously affirmed that (first) “transsexuality” and (subsequently) “gender identity” fall within the scope of art. 14. Yet, the Court has infrequently employed non-discrimination reasoning to decide trans-related disputes, preferring to approach cases through the lens of art. 8. Furthermore, on those rare occasions where the ECtHR has explored potential violations of art. 14, its analysis has often been disappointing, particularly the assessment of both proposed comparators and the justifications cited by national courts for different treatment (e.g. compare AM and PV). AM potentially signifies a new departure in this regard, and the ECtHR can build upon this engagement in upcoming cases. In the UK, AM is also a reminder that, while s. 7 of the Equality Act 2010 sets out the arguably narrower protected characteristic of “gender reassignment” (although, see the recent decision in Taylor v Jaguar Land Rover Ltd for the potentially broad scope of s. 7), protection for “gender identity” does exist in UK law through the Human Rights Act 1998.
Finally, AM is another example of the ECtHR acknowledging rights violations on the basis of sexual orientation and gender identity in Russia. In recent years, the Strasbourg judges have issued numerous decisions condemning so-called anti-LGBT propaganda laws, prohibitions on LGBT rallies and arbitrary arrests by state actors. Seven days after the judgment in AM, the Third Chamber held, in Fedotova and Others v Russia, that there was a violation of art. 8 ECHR where Russia failed to provide any “legal framework capable of protecting the applicants’ relationships as same-sex couples…under domestic law.”