A chamber judgment on 9 July 2024 found that an individual’s rights under Article 8 of the European Convention on Human Rights (the ‘Convention’) were violated by Russian national authorities, who did not carry out an in-depth assessment of the situation before removing guardianship rights for two children from a guardian undergoing a change of gender identity. In this case, the two young children had significant medical diagnoses, were abandoned from birth, and were fostered from a state-run institution by the applicant for around 2-3 years.
In 2017, shortly after the applicant was recognised as ‘transsexual’, they underwent a double mastectomy, albeit for personal reasons rather than part of their transition, and they were approved for surgical, cosmetic and hormonal treatments. After the social services became aware of their transition, a visit was made to the applicant’s apartment. The outcome of the visit was a finding that the living conditions of the children were not satisfactory, and social services requested a termination of the foster care agreement in a friendly settlement. However, the applicant refused to agree to a termination, and the children were removed for their care and placed in a care centre for minors (the applicant has not seen the children since that decision).
Although social services attempted to institute criminal proceedings against the applicant for improper performance of their guardian duties, these did not move forward as investigating authorities found that living conditions were in fact satisfactory and the guardian fulfilled their legal duties. However, social services did institute proceedings in the District Court to terminate the foster agreement, and cited the applicants ‘transsexualism’ as the core reason for the request. The applicant pursued a counterclaim on the grounds that they still performed their motherly duties, but all appeals were dismissed. Subsequently, the applicant fled from Russia in 2018 with their husband and two biological children, successfully applying for refugee status due to fear of persecution and removal of their biological children as a result of their change of gender identity.
In pursuing their case in the European Court of Human Rights (the ‘ECtHR’), the applicant relied on Article 8, the right to respect for private life and family life, and Article 14, prohibition of discrimination in conjunction with Article 8. Accompanying the application was numerous third party interventions from human rights organisations across the globe and groups that promote the rights of the LGBTQI+ community.
The first point for the ECtHR was finding that they have jurisdiction to rule on the matter, as the series of events contributing to the alleged violations occurred before Russia ceased to be part of the Convention in September 2022. Next, the ECtHR held that Article 8 was violated as Russian national authorities did not conduct a thorough examination of the family’s situation or consider the interests of all relevant persons while focusing on the best solution for the children. The Court emphasised the lack of consideration given to the affection that the children might have for the applicant and their relatives, and other relevant factors such as the sanitary living conditions and an expert report that stated the applicant “did not have any disorder which could be dangerous for the children’s life, health and development.”
As there was a violation of Article 8, the court concluded that it was not necessary to separately consider Article 14. This conclusion to not assess discrimination per Article 14 in conjunction with Article 8 was controversial, particularly as the Russian national authorities terminated the custody primarily due to the applicant’s transition. TGEU, ILGA-Europe and the Irish Council for Civil Liberties issued a joint statement expressing their regret over this,
‘… It is incomprehensible why the complaint under Article 14 ECHR (non-discrimination) combined with Article 8 ECHR was not fully investigated. This is a missed opportunity to develop jurisprudence on Article 14.’
In solely making findings for Article 8 violations, the court ordered a payment of €7500 for non-pecuniary damages alongside €5000 costs. A dissenting judgment from Judge Georgios Serghides proposed Russia should also compensate both of the foster children for the harm they suffered, but this was not upheld by the majority view.
While it is unclear what impact this judgment might have in Russia, the Irish Council for Civil Liberties noted,
‘… The judgement is also relevant for the remaining member states, [and] trans foster parents and their families in 46 States of Europe can refer to this judgement.’
To read the decision in Savinovskikh and others v Russia, click here.
To read the joint statement of TGEU, ILGA-Europe and the Irish Council for Civil Liberties, click here.