On Law as Love, Intersectionality and One ECtHR Case

 

In 2014, a school for children with disabilities in Saint Petersburg, Russia, fired a lesbian music teacher for what they deemed an ‘immoral offense.’ The dismissal was preceded by a dossier on the teacher compiled and shared with local authorities by an anti-LGBT activist. The dossier included photos from the teacher’s restricted social media account showing her hugging or kissing other women, including her partner. 

 

AK was among many teachers harassed by anti-LGBT activists and forced to leave their jobs in Russia after the adoption of the national law prohibiting ‘propaganda of non-traditional sexual orientation among minors.’ Human Rights Watch, for example, documented seven other cases in which educators who were LGBT themselves or supported LGBT rights were threatened or pressured to resign. Each case involved smear campaigns citing the ‘propaganda’ law, but only AK’s case reached an international human rights body.

 

European Court’s decision

 

On 7 May 2024, the European Court decided that AK’s dismissal amounted to a disproportionate interference with her rights under Article 8 (respect for private life) of the European Convention, based solely on considerations of her sexual orientation, violating Article 14 (non-discrimination).

 

The Court reasoned that terminating a labour contract based on photos showing affection to intimate partners without being obscene or sexually explicit, was evidently and grossly disproportionate to the claimed aim of ‘protection of morals’.

 

The Court found that AK’s sexuality was central to the national authorities’ decision to terminate her contract. The school administration and national courts referred explicitly to ‘lesbian scenes’, ‘lesbian content’, ‘unethically close same‑sex relations’ and ‘non-traditional sexual orientation’ as the controlling factors for the decision to qualify AK’s actions immoral and incompatible with her role as a music teacher.

 

What is more important, the Court also rejected the state’s claim that AK’s dismissal was due to her actions—particularly, posting pictures with other women, and not her sexuality per se:

 

The national courts in their judgments claimed that the applicant’s dismissal was justified not by her sexual orientation, but by the actions apparently predetermined by it. The Court is unable to entertain this logic. An individual’s sexual orientation may not be isolated from the private and public expressions of it, which are evidently protected elements of an individual’s private life under Article 8 of the Convention [emphasize added]. The posting of travel and partying photos showing affection towards intimate partners is a commonplace practice on social media. The authorities’ hostile reaction in the present case was unmistakably driven by the lack of acceptance of the applicant’s sexuality and was, therefore, patently discriminatory. There is no evidence that anything beyond sexual orientation had supported the authorities’ conclusions regarding immorality of conduct in photos demonstrating the applicant’s affection towards other women.

 

Consequently, the European Court concluded that AK’s expression of sexuality and affection towards other women could not have been qualified as an immoral act, and her use of a questionable gesture (a middle finger at one of the photos) could not demonstrate an irreparable incompatibility of action with her teaching functions. Therefore, the case The case clearly showed that her dismissal was solely due to her sexual orientation.

 

Almost ten years after what happened in Saint Petersburg, AK’s pain and injustice suffered have been acknowledged. On top of EUR 6’500 for the pecuniary damage and EUR 6’000 for costs and expenses, the European Court awarded AK EUR 10’000 in respect of non-pecuniary damage.

 

Four Points of Reflection

 

1.         Claiming citizenship in a hostile environment

 

AK was not an ideal ‘victim’ or ‘homonormative’ subject—something we might know from the queer critique of legal strategies, especially in relation to US litigation on marriage equality.

 

A photo from her social media showing her making a middle finger gesture illustrates this. Although the European Court didn't find this gesture warranted the severity of the sanction imposed, it didn't accept AK’s claim that it was an 'inconsequential form of artistic expression' and deemed it in poor taste (as if the assessment of ‘taste’ is the real task of the European human rights law).

 

AK was not an ‘ideal activist’ either. As was told in an article describing her case, she didn’t attend gay rights rallies, never heard of the anti-LGBT groups operating in Russia at that time, didn’t know what Children-404 (Russia’s It Gets Better campaign) was, and was even unaware that Russia passed a federal ‘anti-propaganda’ law in June 2013. By no stretch of the imagination was she a ‘professional activist’—think in this regard about the question of abuse of the right of submission (not unquestionable itself) raised in a case brought to the UN Human Rights Committee by Nikolai Alekseyev following (one of the multiple) refusal of Russian authorities to allow gay pride marching.

 

AK was also not a lawyer and lacked knowledge of labor laws. However, she had her enormous strength of being genuine. With bright eyes when telling the stories of her students’ achievements. With intuitive feeling of what was wrong and what was unjust. With her phrase in one of the interviews that ‘What’s happened hasn’t hit me yet. I’m not guilty of anything. I’ve been kicked out of something that was my life—something I gave my soul to. But I’m not done—I’m going to stand up for my rights.’

 

Her determination to stand up for her rights, despite not fitting the mold of an ‘ideal subject’, embodies the essence of citizenship for many LGBTQI people in Russia. When dignity is not protected by written laws, it is upheld through and written by our feelings and actions.

 

2.         There is no thing as a single-issue struggle

 

The European Court applied article 14 (non-discrimination) of the European Convention based on its analysis of the role that AK’s sexual orientation played in the case. Sexual orientation—even if considered as inseparably private and public (‘sexual orientation may not be isolated from the private and public expressions of it’)—was still the only ground considered by the Court.

 

Litigation, indeed, may need certain level of abstraction and simplification. This is, however, what Kimberlé Crenshaw, alongside with many other activists and writers, noticed as a reason to call for intersectional approaches to feminism, discrimination and analysis of power dynamics.

 

The case of AK is not only a story of sexual orientation. It is also a story about location, class, gender and ableism. For example, most teachers in Russian schools are women—87.6% in 2015-2016—making them disproportionately affected by the anti-LGBT activists’ harassment of teachers. In 2015, it was the UN Committee on the Elimination of Discrimination against Women that expressed concerns unjustified dismissals of LBTI teachers and urged Russia to protect them from professional discrimination (CEDAW, CEDAW/C/RUS/CO/8, paras 41-42). Yet, it was not just a woman identity but also the norms and systems strictly governing the roles concerning gender and sexuality, both interconnected and built, imposed or challenged in the system of cisheteropatriarchy.

 

The school where AK worked was a special school for kids with autism and with cerebral palsy, and those otherwise struggling in ordinary schools. As AK told in an interview shortly after her dismissal, ‘At first, [these children] didn’t warm up to me. It took a while. But they’ve become very attached by now, especially the kids with autism. They need more time to open up to you. I have a lot invested in them. That I won’t be there is going to be a blow to the kids, too.’ 

 

Teaching jobs in Russia are poorly paid, and it is even more challenging for teachers working with children with special needs, as they are not provided with adequate support and material resources. The combination of patriarchy and ableism place such teachers—mostly women—into the sphere of reproductive labour that is based not as much on fair remuneration but on the essentialist ideas of ‘proper caretakers’. Many teachers are doing this job because of its emotional meaning, which makes the loss of their positions even more devastating. As AK stated in her conversation with the school’s principal, ‘You know, it wasn’t big money that brought me to this job. At this school, I took a monthly salary of 7,000 rubles [$105] after earning 46,000 [$700] at my last job. [She was a salesclerk at a sporting goods store.] I came here because I like school, I like the faculty, and I like all the projects we think up and the contests we win.’

 

And one more dimension to bring in is the economic power structures defining the modern employment. The power imbalance in employer-employee relationships underscores the need for worker protections. The Russian Labor Code theoretically offers such protections (particularly, by establishing a closed list of grounds for a labour contract termination at the initiative of the employer), but it failed to protect AK. Her dismissal was (deemed) justified under Article 81 (8) of the Labour Code, according to which ‘a labour contract may be terminated by an employer for … commission by an employee, who performs educational rearing functions, of an immoral act incompatible with continued performance of those tasks.’ It is, therefore, a story of unequal power relationships in the circumstances where a theoretically adequate legislation was applied to discriminate against a lesbian teacher.

 

Overall, this case demonstrates the importance of intersectionality—not only to recognize and respect multifaceted identities, but also (and perhaps first and foremost) to understand the intersecting power structures and systems of oppression. This approach would foster mutual support, care and solidarity among different movements—those fighting for LGBTI human rights, workers’ movements, movements of persons with disabilities, feminist and anti-capitalist movements.

 

3.         State-sponsored homophobia and nation building

 

The Russian anti-propaganda law was characterized by Human Rights Watch as a ‘classic example of political homophobia’ targeting vulnerable sexual and gender minorities for political gain, pandering to a conservative domestic support base and helping to position Russia as a champion of so-called ‘traditional values’ on the international stage. Despite numerous concerns and recommendations from various human rights bodies, the law became a hallmark of the current political regime's nation-building efforts, promoting an image of the ideal Russian as Orthodox, hyper-heterosexual, and hyper-nationalistic. Those outside of this paradigm were to be disciplined, rejected, insulted and othered, whether for being queer, non-Orthodox, human rights activist, Ukrainian, coming from Central Asia or, though differently, ‘gayropa’ or ‘America’. And, of course, children—as a promise of nation building and the state’s ownership, but also an easy argument to play with—became the core of many ‘traditional values’ discourses.

 

Ironically enough, there is hardly anything unique or creative in the ‘anti-propaganda’ law adopted by Russian authorities. Moreover, the original version of such regulations came from the very ‘West’ so clearly contrasted by the official discourses with the Russian national ideal.

 

In 2003, two important legislative changes happened simultaneously in different parts of Europe (if we consider Russia, at least its Western part, European). In the UK, the infamous Section 28 was finally repealed, while the first bill aimed at banning ‘homosexual propaganda’ was introduced, for the first time, to the Russian State Duma.

 

Section 28 of the 1988 Local Government Act, introduced by the Thatcher’s Conservative government, prohibited ‘promoting homosexuality by teaching or by publishing material’.

In 2002, the UN Committee on the Rights of the Child recommended that the UK ‘provide adequate information and support to homosexual and transsexual young people’, and encouraged the UK, further to the statement of intent made by its delegation, to repeal section 28 (CRC, CRC/C/15/Add.188 (9 October 2022), para 44 (d)). The provision was indeed repealed in 2003 in England and Wales (and even earlier, in 2000, in Scotland). Yet, section 28 had affected queer communities in the UK and left scars that hurt many. Some stories behind this, both personal and political, were presented in the 2022 award-winning movie ‘Blue Jean’ by Georgia Oakley inspired by real-life experience of lesbian teachers in England in the late 1980s.

 

At the same time, in Russia the first bill prohibiting ‘propaganda of homosexualism’ was introduced to the Russian State Duma. The bill aimed at amening the country’s Penal Code:

 

Propaganda of homosexualism. Propaganda of homosexualism contained in a public statement, publicly demonstrated works or in the mass media, including those expressed in the public display of homosexual lifestyle and homosexual orientation, shall be punished by deprivation of the right to occupy certain posts or practice certain activities for a period of two to five years.

 

The author of the bill, MP Chuyev, explained the need for such legislative restrictions as follows:

propaganda of homosexualism is steadily growing in contemporary Russia. The propaganda is conducted both through the media, and through the active implementation of educational programmes promoting homosexualism as a normal behaviour in educational institutions. This propaganda is especially dangerous for children and youth, who are not yet capable of a critical attitude to the avalanche of propaganda, which falls on them every day. And such propaganda is more dangerous when it is led by the teachers themselves. In this connection it is necessary to protect society, especially the youth, from the impact of homosexual propaganda, and this draft pursues this objective. The draft … aims to deprive the convicted person the opportunity to continue their homosexual propaganda using his/her job position. ... Those who propagate the homosexual lifestyle should not be admitted to certain activities or certain positions, which are understood to be teaching, mentoring and other activities among children and youth…  

The bill, as well as its 2004 and 2006 twins, did not get approval at that time, with the Russian Supreme Court, the Government, the State Duma’s Legal Administration and the Parliamentary Committee on Information Policy, Information Technologies and Communications, all refusing to support the bill.

 

However, in 2008, five years later, the first, ‘pilot’ regional law prohibiting ‘homosexual propaganda among minors’ was passed in Ryazan Oblast’. The law introduced administrative sanctions (fines) for ‘public actions aimed at propaganda of homosexualism (sodomy and lesbianism) among minors’. Since 2011, a number of other regions adopted similar laws, and in 2013 the federal Code of Administrative Offences was amended to prohibit ‘propagating non-traditional sexual relations among minors’. In 2022, the legislation was amended once again, to prohibit dissemination of any information ‘propagating non-traditional sexual relations, paedophilia or sex change / gender reassignment («смену пола»)’ among people of all ages.

 

All this to say that global queer history is a complex dynamic of personal and political, colonial and decolonial, imperialist and liberational. It was not the Russian government who invented the idea of prohibiting ‘propaganda of homosexuality’, but it was this political regime that re-adopted and re-appropriated this know-how. And it is not only the Russian government exploiting this idea in its discoursive and political strategies. 

 

We may think, for example, of Kyrgyzstan, where in August 2023 the Parliament adopted a law banning dissemination of harmful information among minors, specifically information that ‘denounces family and traditional societal values, promotes non-traditional sexual relations and initiates disrespect towards parents or other family members.’ It was the Parliament of Kyrgyzstan, but it was also the colonial nature of the influence that Russia has in the region.

 

Another example is Ghana, a country that gained independence from the British empire in 1957 and inherited its colonial laws, including criminal provisions punishing same-sex conduct between men. Unlike many other countries that have decriminalized homosexuality after gaining independence, Ghana processed differently. The Promotion of Proper Human Sexual Rights and Ghanian Family Values Bill was introduced to the Parliament in Ghana in 2021 and adopted in February 2024. The bill ‘proscribe propaganda of, advocacy for or promotion of LGBTTQQIAAP+ and related activities,’ establishing a prison sentence of three to five years as sanctions for such activities.

 

This historical context reveals that anti-propaganda laws are neither unique nor innovative but are adopted and adapted by various regimes to assert control. These laws serve to consolidate power, drawing from global and local discourses, and highlight the complex interplay between national and international forces in shaping human rights landscapes.

 

4.         Reparative reading: what is left over after?

 

I coordinated AK’s case at the national stage and co-represented her in national courts. Being a rational lawyer in the courtroom and coping with extreme feelings of anger and powerlessness when being along with myself. Still providing something we, lawyers, are capable of, even in the most difficult cases—support, caring hand, the power of knowing the law (thus power with and not power over). For these reasons, the European Court’s decision on AK v Russia holds personal significance to me, even as I have since moved out of the country, and the country moved out of the European Court.

 

What remains after a country ceased to be a party to the European Convention? What is the point of law and human rights? For me, the answer is—community and sharing. Law as our intuition of what is unjust, as it was for AK from the very beginning. Law serving as storytelling, archiving injustices, and creating a feminist catalog, as Sara Ahmed suggests. Law as being about community support, breaking silence, calling out injustice, and building solidarity. It represents traveling ideas, like the 1994 Toonen v Australia decision cited worldwide against the criminalization of same-sex acts. Law is about love—not the commodified pride of rainbow capitalism but the transformative love described by bell hooks. Law as her pedagogy of hope:

 

Dominator culture has tried to keep us all afraid, to make us choose safety instead of risk, sameness instead of diversity. Moving through that fear, finding out what connects us, reveling in our differences; this is the process that brings us closer, that gives us a world of shared values, of meaningful community.