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Approval of Georgia’s Draft Law on Family Values and Minors: A Threat to the Human Rights of LGBTI Persons

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Brett Sayles. Pexels 2024.

12-09-2024

Innocenti Chiara

 Human Rights and Europe Researcher,

Global Human Rights Defence.

Strasbourg, France – On September 4th, Georgia, which was granted candidate status by the European Council in December 2023, once again came under international scrutiny due to its illiberal regulatory decisions.

The draft law on the protection of family values and children was swiftly passed in its second reading by the Georgian Parliament, signaling to the international community a potential threat to  democratic principles and a violation of the fundamental rights of non-traditional families. The bill is accompanied by a constitutional amendment to Article 30 of the Georgian Constitution,  ostensibly aimed at embedding the protection of family values and minors within the Constitution. However, upon closer examination, the law reveals underlying and concerning objectives.

Paragraph 1, “The legislation shall regulate only such marriage-like relationship that envisages ties between one genetically male and one genetically female of at least 18 years old,” excludes both same-sex couples and individuals undergoing gender transition from legal recognition. This lack of legal recognition clearly contradicts Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR).

Paragraph 2, “Adoption or foster care of a minor shall be allowed only for married spouses as defined by the Constitution of Georgia and the Georgian legislation or a heterosexual person,” restricts the ability to foster and adopt children to those who are in legally recognised marriages, thereby excluding all unmarried couples, single gay, lesbian, and bisexual individuals. This effectively limits adoption or foster care to unions “between one genetically male and one genetically female”.

Paragraph 3, “Any medical intervention aimed at changing sex shall be forbidden,” prohibits any gender reassignment surgery within national territory, which amounts to a flagrant breach of the right to self-identity as recognised through the broad interpretation of Article 8 ECHR established in the case law of the Court. This interpretation holds that an individual’s identity is not solely determined by their birth sex, but also by the gender they freely choose, based on the role  they occupy in society.

Paragraph 4, “In compliance with genetic data, either male or female sex shall be indicated in the documents issued by state or local self-government,” imposes a legal obligation on the State to refer exclusively to genetic data recorded in the birth certificates to assign individuals the male or female sex. This provision implies that non-binary, intersex, and transgender persons are barred from obtaining legal recognition of the gender transition in the official documents issued by public authorities. This is in direct conflict with Article 8 ECHR, which creates a positive obligation on States to validate both persons who have undergone gender reassignment surgery and those who do not wish to.

Paragraph 5, “Any decision of a public authority or a private person that directly or indirectly restricts the use of concepts defined by sex is invalid,” appears to prohibit the adoption of guidelines, or more generally policies promoting the use of gender-neutral language or gender-inclusive language. This provision does not adhere to the principle of foreseeability required by the rule of law in a democracy, and consequently raises serious doubts about its scope, in particular, whether it applies to private individuals or solely to organisations and groups. In either case, regardless of how this provision is interpreted, it would constitute undue State interference with Article 10 (freedom of expression) and Article 11 (freedom of association)  of the ECHR.

Paragraph 6, “The gathering is forbidden, if it aims to popularise single-sex family or intimate relationship, incest, adoption or foster care of a minor by same-sex family or non-heterosexual person, changing sex by medical intervention or non-use of concepts defined by sex,” shall be read in conjunction with paragraph 7, “Distribution of production, program or any other material is forbidden, if it aims to popularize single-sex family or intimate relationship, incest, adoption or foster care of a minor by same-sex family or non-heterosexual person, changing sex by medical intervention or non-use of concepts defined by sex.” These two paragraphs conflate concepts that regard sexual orientation and self-identity with incest, a criminal offence, and serve to imply that sexual orientation and self-identity should be treated as violations of children rights. Paragraphs 6 and 7, as they forbid gatherings or the distribution of content intended to promote gender-related issues, are at clear variance with Article 11 (freedom of assembly and association), Article 8 (the right to respect for private life), and Article 10 (freedom of expression).

Paragraph 8, “Providing the information during an education process in public or private educational institution is forbidden, if it aims to popularize single-sex family or intimate relationship, incest, adoption or foster care of a minor by same-sex family or non-heterosexual person, changing sex by medical intervention or non-use of concepts defined by sex,” prohibits imparting information regarding gender-related issues in the education system for children, which is a clear violation of Article 2 of Protocol No. 1 to the ECHR (Right to education) and Article 14 ECHR (prohibition of discrimination).

Inasmuch as the Georgian draft law on the protection of family values and children blatantly  flouts International law, Council of Europe Commissioner for Human Rights Michael O’Flaherty, sent a formal letter to Georgian Parliament Chairman on September 10, urging  the reconsideration of this controversial decision and stressing that the protection of children should not come at the expense of other human rights guaranteed under the Convention. Similarly, UN Special Rapporteur on the situation of human rights defenders Mary Lawlor, condemned the developments in Georgia as part of a broader repressive wave that began with the passage of the Law on Transparency of Foreign Influence (a.k.a Foreign agent law) in Parliament last May, emphasising its potential to worsen an already precarious environment for human rights defenders, which “stood (already in 2023) on a precipice”.

This draft law is widely seen as providing a legal footing for discrimination against LGBTQI persons, aiming to stifle diversity  by reinforcing societal stigmatisation of sexual orientation. The international community, the European Commission for Democracy (Venice Commission),  the United Nations, and all relevant stakeholders have called for an immediate revision of the law.

 

Sources and Further Readings:

(2024, September 4). Parliament backs draft law on Family Values and Protection of Minors in 2nd reading. Georgian Public Broadcaster. Retrieved on September 10, 2024, from

https://1tv.ge/lang/en/news/parliament-backs-draft-law-on-family-values-and-protection-of-minors-in-2nd-reading/.

(2024, September 5). Georgia: Targeted and sustained repression of human rights defenders must stop, says Special Rapporteur. United Nations Human Rights Office of the High Commissioner. Retrieved on September 8, 2024, from

https://www.ohchr.org/en/press-releases/2024/09/georgia-targeted-and-sustained-repression-human-rights-defenders-must-stop.

(2024, September 10). Georgian Parliament should not adopt anti-LGBTI law and should refrain from using stigmatising rhetoric. The Council of Europe. Retrieved on September 10, 2024, from

https://www.coe.int/en/web/portal/-/georgian-parliament-should-not-adopt-anti-lgbti-law-and-should-refrain-from-using-stigmatising-rhetoric-1.

O’Flaherty, M. (2024, September 10). Letter to the Chairman of the Parliament of Georgia. The Council of Europe. Retrieved on September 10, 2024, from

https://rm.coe.int/letter-to-chairman-of-parliament-georgia-by-michael-o-flaherty-coucil-/1680b18c78.

Zoria, Y. (2024, September 5). EU deplores Georgia’s “family values” laws, warns of discrimination risks. Euromaidan Press. Retrieved on September 10, 2024, from

https://euromaidanpress.com/2024/09/05/eu-deplores-georgias-family-values-laws-warns-of-discrimination-risks/.

(2024, May 15). Georgia: UN experts condemn adoption of Law on Transparency of Foreign Influence. United Nations Human Rights Office of the High Commissioner. Retrieved on September 11, 2024, from

https://www.ohchr.org/en/press-releases/2024/05/georgia-un-experts-condemn-adoption-law-transparency-foreign-influence.

(2024, June 24). Georgia Opinion on the Constitutional Draft Law on Protecting Family Values and Minors. Venice Commission. Retrieved on September 11, 2024, from

https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2024)021-e.

(2024, September 9). Georgia: Statement by the Spokesperson on the legislative package on “family values and protection of minors”. European Union External Action. Retrieved on September 11, 2024, from

https://www.eeas.europa.eu/eeas/georgia-statement-spokesperson-legislative-package-family-values-and-protection-minors_en.

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