The Nonsense Used to Justify Bigotry

Russia's justifications for its anti-gay law are ridiculous.

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Protesters demonstrate against controversial Russian anti-gay laws the country says it will enforce during the 2014 Winter Olympics in Sochi.

The poster seemed innocuous enough: "Homosexuality is not perversion. Grass hockey and ballet are." Dancers and hockey players of the world appeared unfazed. But local police officers in St. Petersburg, Russia took umbrage, apprehending the solo demonstrator as he picketed peacefully within view of a local children's library. He was charged and convicted under the region's nebulous – and increasingly legislated – "propaganda" of homosexuality law.

The new law, which the Russian Supreme Court upheld last year, makes it an offense to engage in any "propaganda of (or public activities promoting) sodomy, lesbianism [and] bisexuality…to minors" including any information that promotes a "distorted perception of social equality of a traditional and non-traditional marital relationship."

As Russia prepares to host the 2014 Winter Games, its president, Vladimir V. Putin, has come under fire from international human rights lawyers after signing a host of anti-gay bills last month. Although the new laws are invidiously far ranging – i.e. placing restrictions on gay couples ability to adopt Russian-born children to allowing police officers to detain tourists for up to 14 days on suspicion of being "pro-gay" – it was Putin's endorsement of a country-wide ban on homosexual propaganda that marked the most worrisome retrenchment for human rights activists by sending a strong, go-ahead signal to other countries debating similar provisions.

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At the moment, laws prohibiting homosexual "propaganda" have been proposed at the local and federal level of government in several other Central and Eastern European countries including Hungry, Lithuania, Moldova and Ukraine.  What's more, Russia, Ukraine and Moldova were among the first nations to decriminalize homosexuality in the early '90s.    

Last month, the European Commission for Democracy through Law issued an opinion declaring the anti-propaganda laws inconsistent with international human right standards and, specifically, in violation of the European Convention on Human Rights. The report concluded that the "[a]im of these measures is not so much to advance and promote traditional values and attitudes towards family and sexuality but rather to curtail non-traditional ones by punishing their expression and promotion."

Central and Eastern European legislators have attempted to justify the prohibitions on pro-gay propaganda as necessary stopgaps against an erosion of public morals as well as a safeguard to protect the interests of impressionable minors. "That's the way morals work," reasoned Yury Luzhkov, who until 2010 was the mayor of Moscow. "If somebody deviates from the normal principles [in accordance with which] sexual and gender life is organized, this should not be demonstrated in public and anyone potentially unstable should not be invited."

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Upon closer scrutiny, both justifications crumble.

At the outset, under its equality jurisprudence international law forbids the use of cultural, religious or traditional dominant group values to justify blanket restrictions on individuals' rights to promote tolerance towards homosexuality. "[W]ithout limiting the probation to obscene or pornographic display of homosexuality, or to the demonstration of nudity or sexually explicit or provocative behavior or material, the provisions cannot be deemed to justify as necessary in a democratic society to the protections of morals," explained the European Commission.  

As to the effect gay rallies and rainbow flags had on children, the European Court of Human Rights found that, "[t]here is no scientific evidence or sociological data…suggesting that the mere mention of homosexuality, or open public debate about sexual minorities' social status, would adversely affect children or 'vulnerable adults.'" In fact, studies suggest the opposite may be: exposure to age-appropriate information about sexual orientations fosters healthy attitudes and developmentally normative understandings of sexual behavior.   

Even the laws' underlying efficacy is questionable. "You can also adopt a law against turning off the light of the sun, but no one has the ability to do this," said Igor Kochetkov, the head of Russian L.G.B.T. Network. "Even if someone wanted to, no amount of propaganda is going to turn a heterosexual gay."

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But what human rights lawyers fear most about the recent spate of ill-defined restrictions on homosexual propaganda is that the provisions are a mere precursors to wider, state-sanctioned crackdowns against gays and lesbians. Most of the bills, for instance, are not formulated with sufficient clarity to allow individuals to act – with any degree of certainty – in conformity with the law  Leaving key terms such as "propaganda," "promotion" and "negatively influence" undefined will have the double-edged effect of deterring potentially lawful forms of expression and allowing for arbitrary enforcement by police and prosecutors.

The 2014 Olympics provides the international community a platform to restate its commitment to promote and protect all individuals' – dancers and hockey players included – right to freedom of expression and assembly by calling for the repeal of prohibitions on homosexual propaganda.    

Drew F. Cohen is a law clerk to the Chief Justice of the Constitutional Court of South Africa. Follow him on Twitter at @DF_Cohen or email him at dfcohen@law.gwu.edu.

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