European Court of Human Rights accepts Russian case on transgender parenting that will set precedent for 47 countries

The European Court of Human Rights (ECHR) has accepted a case on the parental rights of a transgender individual for the very first time, the Russian newspaper Kommersant reported. The case follows from a complaint submitted by a Russian citizen who was completely barred from seeing or contacting her children following her surgical transition. The ECHR’s decision in the case will set a precedent for all Council of Europe member states.

According to Tatiana Glushkova of the Transgender Legal Defense Project, the complaint in question was submitted on September 4, 2019, and accepted for consideration in late November. The applicant, A.M., is a transgender woman (the full names of the individuals involved in the case are confidential). In 2008, A.M., who presented as male at the time, married another Russian citizen, N.V. The couple had a son and a daughter. In 2015, the two parents divorced, and A.M. began her transition. Her identifying documents now indicate that she is a woman.

In 2017, N.V. asked a court to ban A.M. from seeing her children. N.V. argued that the children’s “mental health and morality” might suffer irreparable harm due to A.M.’s transition and the harassment that might result among their peers at school. In her lawsuit, N.V. cited Russia’s 2013 law on “gay propaganda,” which the ECHR has found to be discriminatory, among other justifications for her claims. The Lyublinsky Court in Moscow, which received N.V.’s suit, ordered several examinations of A.M. and the couple’s children, including psychological, psychiatric, and sexual examinations. The examinations were conducted by the Serbsky Institute, which has a reputation for punitive psychiatry that stretches to the Soviet era.

When the results arrived in March 2018, the Serbsky Institute’s specialists indicated that they were not familiar with any research conducted in Russia that addressed transgender parenting in Russia. However, they did conclude that nearly all experiments conducted abroad were not to be trusted — those research projects had found that the children of transgender parents suffer no ill effects when compared to other children. The specialists ultimately reported that revealing A.M.’s transition to her children would negatively affect them. A.M.’s attorney asked to seek and submit a scientific review of the Serbsky Institute examination, but the Lyublinsky Court allocated only two days for him to do so — a Saturday and a Sunday. The attorney was unable to submit a complete scientific review in time, and A.M.’s parental rights were limited. The court emphasized that it did not doubt A.M.’s feelings for her children but found any actual conversation with them to be inadvisable. The decision also noted that the court’s ban could be reconsidered “in accordance with the maturation of the children and future changes in the level of their psychological development.”

Three months later, the Moscow City Court heard A.M.’s appeal of the lower court’s decision. By that time, a scientific review of the initial examinations had been completed. The review was written by Vladimir Mendelevich, the chair of the Department of Medical Psychology at Kazan State Medical University. Mendelevich noted that the Serbsky Institute report only cited a single research paper: A 2012 publication by the U.S. scholar Mark Regnerus that claimed to find decreased well-being among children who lived in households where the parents had been in same-sex relationships. Not only did that paper have no bearing on the children of trans parents; it has also been widely disputed among other scholars who found Regnerus’s methodologies and conclusions to be unsound, Mendelevich told Kommersant. In his review, the psychiatrist pointed to an absence of scientific evidence that being raised by a transgender parent can affect a child’s gender identity or sexual orientation. However, the Moscow City Court declined to consider Mendelevich’s review and affirmed the lower court’s ruling. Russia’s Supreme Court did the same.

A.M. then applied for her case to be heard by the European Court of Human Rights. She agreed that her children might be shocked when they first learn of her transition but argued that they would soon become accustomed to it. “All around, the problem of ‘how to tell the children’ has been artificially exaggerated. It’s actually not that complicated. For example, why not say, ‘You know, this kind of thing is rare, but it happens — a boy was born with the soul of a girl. It was really bad for him, but when he got the chance, he went to the doctor’s office, and they helped him become a girl,’” A.M. told Kommersant. When asked how she would explain her absence to her children, she was unable to answer, but she noted that that during her son’s conversations with the Serbsky Institute’s specialists, he said, “Daddy abandoned us.”

Tatiana Glushkova, the attorney from the Transgender Legal Defense Project, believes that the Russian court’s original decision was based on an “openly biased” examination and that it harmed the children in the case most of all. Sooner or later, she argued, the children will find out what happened to their family, and regardless of how they respond to A.M.’s transition, they will not be able to change the fact that one of their parents was absent throughout their childhood. Glushkova expressed hope that the ECHR would rule on A.M.’s complaint within a year “because everybody understands that the question of reuniting children and parents must be decided as soon as possible.” Glushkova also noted that the ECHR had never before heard a case that rested on comparable circumstances, meaning that its decision on A.M.’s case will set a precedent for all 47 member states in the European Council. Russia itself may not enforce the decision, however: In 2015, Vladimir Putin permitted that country’s Supreme Court not to adhere to ECHR rulings.