Recent Decisions of Interest Concerning LGBTQ+ Rights in Russia, Poland and Latvia

The European Court of Human Rights (ECHR) issued three decisions of interest concerning LGBTQ+ issues over the summer. While each decision constitutes a win for the LGBTQ+ community, the underlying facts highlight the difficulties that community members continue to face on various issues such as family law, incarcerated persons’ rights, and inadequate police investigation and criminal prosecution of hate crimes.

The ECHR, Third Section, held in Savinovskikh and Others v. Russia, that Russia violated the European Convention on Human Rights when it terminated a transgender man’s custody of two minor children whom he was fostering.

The First Section of the ECHR held in W.W. v. Poland that Poland violated a transgender incarcerated person’s Convention rights by refusing to allow her to continue hormone therapy while in prison.

Finally, the ECHR, Fifth Section, handed a victory to a professor at Rīga Stradiņš University in Latvia named Deniss Hanovs. In that case, the ECHR, Fifth Section, held that Latvia violated Articles 3 and 8 of the Convention taken in conjunction with Article 14, by failing to protect Hanovs’ “dignity and private life by ensuring the effective prosecution of the attack against him, while taking into account the hate motive behind the attack.”

Savinovskikh and Others v. Russia

In 2014, Yulia Savinovskikh, a Russian national assigned female at birth but now identifying as male, began fostering two young children with special needs. The children, D.D. and K.K., were both born in 2012, and each had been living in public care facilities before Savinovskikh took custody of them.

In 2017, Savinovskikh underwent a double mastectomy and began presenting himself as male on social media. When Russian authorities in Ordzhonikidzevskiy District of Yekaterinburg learned about Savinovskikh’s surgery and discovered pictures he had posted on social media, they conducted a visit and decided that D.D. and K.K. should be removed to a public care facility. A day after the visit, social services terminated Savinovskikh’s custody, and he has not seen the children since.

Social services commenced proceedings in a local district court to formally terminate Savinovskikh’s foster agreements, arguing: “[t]he main reason for termination of the foster care agreement is [Savinovskikh’s] transsexualism, since the children were initially placed in a traditional family.” After a hearing in February 2018, the court terminated the agreements and dismissed Savinovskikh’s counterclaim seeking a return of custody. In its judgment, the district court stated: “[i]n accordance with the provisions of Article 12 of the Family Code of the Russian Federation, in Russia only a man and a woman can be married. Registration of same sex marriages is prohibited. [Savinovskikh’s] identification as male, considering her being married to a man, her intent to adopt a social role typical for persons of male gender, is in substance contrary to the principles of family law of our country, traditions and mentality of our society.” Note that the court misgendered Savinovskikh.

Savinovskikh’s subsequent appeals were unsuccessful. Meanwhile, Savinovskikh and his husband fled to another unidentified country with their biological children while D.D. and K.K. were placed with a new foster family in March 2019.

Savinovskikh then filed a complaint with the ECHR, on behalf of himself, D.D., and K.K., arguing that removal of the children from his custody violated their right to respect for family life under Article 8 of the Convention,

Article 8 reads as follows:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Savinovskikh also asserted that Russia violated Article 14 of the Convention taken in conjunction with Article 8. Article 14 provides that “[t]he enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

In finding for Savinovskikh, the ECHR took issue with the Russian courts’ failure to consider “any individualised (sic) expert examination of the applicant and the children or any scientific study regarding the impact of a change of gender identity on the children’s psychological health and development.” Thus, the ECHR unanimously held that “[t]he existence of substantial contradictions between the interests of the applicant and of the children were found by the domestic authorities in the absence of any evidence to the effect that the applicant’s change of gender identity could in any way be harmful to the children and in disregard of the children’s affection for the applicant and the members of his family.” In the absence of an “in-depth examination of the entire family situation and [] a balanced and reasonable assessment of the respective interests of each person with a constant concern for determining what the best solution would be for the children,” Russia necessarily violated Article 8 of the Convention with respect to Savinovskikh, D.D. and K.K.

W.W. v. Poland

This case involved a transgender prisoner identified as W.W. who was denied hormone therapy while being held at the Siedlce Prison, located in Eastern Poland. During W.W.’s lengthy prison history, she treated for gender dysphoria after engaging in self-harming behavior, including performing a bilateral orchiectomy on herself (the removal of both testicles) for which she was hospitalized. In 2019, prison health professionals prescribed hormone replacement therapy to W.W. at her own cost. After W.W. began taking the medication, it was noted that her physical and emotional health improved.

W.W. was transferred to Siedlce Prison in May 2020, and shortly thereafter requested additional medication to continue hormone treatment. The prison governor, however, denied W.W.’s request, stating that “the administration of female hormones to a man in a prison setting without a thorough psychological-psychiatric expert opinion and endocrinological tests recommended by a consultant endocrinologist was very risky.” What followed was a period of uncertainty for W.W., as her supply of medication began to dwindle. After taking half-doses for several weeks, W.W. ran out of medication in July 2020 and was able to obtain an emergency order from the ECHR which directed the prison “to administer the applicant . . . with hormones prescribed by her endocrinologist [] in doses prescribed, at her own expense, until otherwise decided by an endocrinologist.”

W.W. began taking medication again on July 31, 2020, resulting in a period of disruption lasting about one month. In her ECHR complaint, W.W. argued that the refusal to allow her to continue hormone therapy while in prison constituted inhuman and degrading treatment in violation of Article 3 of the Convention. W.W. further argued that these acts constituted a violation of Article 8 of the Convention as a breach of her right to respect for private life and self-determination.

Article 3 of the Convention provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The ECHR held in a 6-1 decision that the government had “failed to strike a fair balance between the competing interests at stake, including the protection of the applicant’s health and her interest to continue the hormone therapy associated with gender reassignment.” In finding a violation of Article 8 of the Convention, the Court noted that the government had sufficient evidence that hormone therapy was an appropriate medical treatment for W.W.’s state of health and yet did not grant her request to continue taking the medications for which she was paying from her own funds. In light of this finding, the court declined to consider the balance of parties’ arguments. The lone dissent was from the Polish judge on the panel, Judge Krzysztof Wojtyczek, who maintained that Poland did not violate the Convention in this case.

Hanovs v. Latvia

On November 8, 2020, Professor Hanovs, who lives in Riga, Latvia, with his same-sex partner, was the victim of a homophobic attack. In short, as the couple walked their dog along a local market, they were accosted by two intoxicated men who yelled, kicked, and chased them to a nearby store where the couple barricaded themselves until their aggressors gave up and left.

Hanovs’ reported the incident to local police. However, the police failed to correctly identify one of the aggressors, who was never charged in connection with the incident. Meanwhile, the other man, identified as JP, admitted that the attack was motivated by hate saying such things during a police interview as “faggots, have you lost your f...ing minds [to act like this]?” Yet JP was only charged with “petty hooliganism” and fined 70 EUR. 

Hanovs appealed the government’s prosecutorial decisions, arguing that JP’s conduct qualified as a hate crime under Latvian Law. The case was eventually reopened by local authorities, but no new charges were ever filed as police claimed, “it could not be established that JP had a direct intent to incite hatred or enmity, and his actions had not reached a sufficient level of publicity to influence public attitudes towards a social group, such as homosexuals.” Hanovs’ subsequent appeals were unsuccessful.

Hanovs argued before the ECHR that the authorities had failed to conduct an effective investigation and prosecute the attack committed against him in violation of Articles 3, 13 and 14 of the Convention. In addition, the Court sua sponte raised the issue of whether Article 8 of the Convention had also been violated.

Under Article 13 “[e]veryone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority . . .”

Finding a violation of Articles 3 and 8 of the Convention taken in conjunction with Article 14, the Court held that the authorities were required to “rigorous[ly apply] domestic criminal law mechanisms capable of taking into account the homophobic overtones behind the attack and of prosecuting and if appropriate, adequately punishing those responsible”, citing Sabalić v. Croatia. The ECHR rejected the government’s argument that administrative proceedings resulting in a 70 EUR fine against JP were sufficient because these proceedings and penalty did not address the hate element of the attack against Hanovs, and the punishment was too lenient considering JP’s actions. The Court explained that “[f]ailure to address such incidents can normalize hostility towards LGBTI individuals, perpetuate a culture of intolerance and discrimination and encourage further acts of a similar nature.”