Moscow, Russia (GVO) – Russian lawmakers have been notoriously busy bees in recent years, passing numerous laws since 2012, when Vladimir Putin returned to the presidency, that have expanded police powers and imposed new restrictions on the actions of Russian citizens.
On October 29, 2015, two Russian Duma deputies from the Communist Party, Ivan Nikitchuk and Nikolay Arefyev, proposed an amendment to the Code of Administrative Offenses, which would create an article titled “Public Expression of Nontraditional Sexual Relationships.” The term “nontraditional sexual relationships” has been used extensively as a euphemism for homosexuality in Russian legislation. Deputies have yet to vote on a draft of the amendment, which is still before the State Duma’s Committee on Constitutional Legislation and State Building.
The bill (№ 916716-6)—a mere two pages in length—would establish Article 6.12.1 to the Code of Administrative Offenses, which comprises just two subsections:
The public expression of nontraditional relationships, consisting of a public demonstration of these distorted sexual preferences in public places—if these actions do not contain a criminal offense–are punishable by a fine on citizens in the amount of 4,000 to 5,000 rubles [$60 to $76];
Actions envisaged in part 1 of this article—committed on the territory and premises intended for the provision of educational services, cultural institutions, and youth institutions, if these actions do not contain a criminal offense—are punishable by a fine of 4,000 to 5,000 rubles or administrative arrest of up to 15 days.
Although the bill has not garnered any traction within the State Duma, its passage would further complicate the rights of LGBTI Russians, who have seen a barrage of legislation in recent years aimed at curtailing their rights under the guise ofprotecting children.
The proposed amendment, however, is the most overt legislative attack on homosexuality in Russia to date. Although it contemplates the protection of children, like the 2013 law enumerated in Article 6.21 of the Code of Administrative Offenses (“2013 law”), the amendment proposed by Nikitchuk and Arefyev goes well beyond the 2013 law insofar as it bans all public display and expression of homosexuality—not just “propagandistic” activities conceivably aimed at minors.
If passed, a challenge to the law would be inevitable, making the constitutional challenge to the 2013 law particularly instructive. In that case, Russia’s Constitutional Court upheld the law because it was ostensibly designed to protect “constitutionally significant values, such as family and childhood, as well as prevent harm to the health of minors, and their moral and spiritual development.” The Court also ruled that the 2013 law is constitutional on the basis that it “does not involve intervention into the sphere of individual autonomy, including individual sexual self-determination, [and is] not intended to prohibit or officially reprimand nontraditional sexual relationships.” Moreover, the Court found the law constitutional because it did not prohibit “assembly and public gatherings,” except those aimed at the dissemination of information to minors.
What Nikitchuk and Arefyev propose, on the other hand, seeks to penalize homosexuality and prohibit LGBTI persons’ right to public assembly irrespective of its so-called effect on minors. The bill, as written, would appear to be inherently disharmonious with Russia’s Constitution. In effect, the proposal to ban public homosexuality strips away LGBTI Russians’ equal protection under the law, which is clearly prohibited by Articles 17(1), 19(1), and 55(1)-(2) of the Constitution.
If passed by the parliament and signed into law by President Putin, would Russia’s Constitutional Court uphold a ban on public homosexuality? Many expected the Court to strike down the law banning so-called “gay propaganda” in the presence of minors, but it didn’t. The new proposal by Nikitchuk and Arefyev, meanwhile, is an even more glaring affront to Russians’ fundamental rights. For that even to be a consideration, the proposal would need to find a way out of committee and into Russia’s law books.
In recent years, however, when it comes to the Russian legislative system, stranger things have happened.
James M. Slater is an attorney at Kozyak Tropin & Throckmorton, LLP in Miami, Florida. He has a wealth of experience working in the Russian Federation and CIS.