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What is wrong with the new bill?

15.07.2020

Yesterday at 19.55 three bills went to the State Duma of Russia. All three are aimed at strengthening of the traditional family. The bill was authored by the members of the Federation Council: Elena Mizulina, Lyudmila Narusova and five others. In this text we explain why their projects are transphobic and how they set transgender rights several years back. Complete texts of the bills in Russian are available here, here and here.

Summary of the bill

The status of homosexual marriage in Russia remains the same: they were not allowed before the bill, and they would not be allowed in case the bill is adopted;

The status of adoptive parents and foster parents remains unchanged:

-        LGBT persons are allowed to adopt children and take children into foster care;

-        Several categories are not allowed to become adoptive/foster parents: those who entered into homosexual marriage (partnership) abroad (however, in cases the data on marriage is not published in public registers, Russian authorities will not be able to learn about such marriage); and those who have not entered into any marriage (hetero- or homosexual) but are citizens of the states which recognize such marriages (partnerships).

Marriage for transgender persons is de facto banned.

The procedure of legal gender recognition procedure will likely remain, but transgender persons undergoing this procedure will not receive new birth certificates; those who have already received birth certificates with their actual gender will have to change them back before January 1, 2022. Thus, a person will have two IDs with two different genders: birth certificate (with gender assigned at birth) and a passport (with preferred gender marker). 

These processes reflect the states policy to support conservative patriarchal values and are a direct consequence of the recent voting on the amendments to the Constitution.

How will our lives change if the bill is adopted?

A state-wide voting on the amendments to the Constitution ended on the 1st of July, 2020. The amendments came into force on July 4th, 2020. Nine days later, conservative politicians proposed the first legislative corrections based on the amendments.

The lawmakers point out that the true reason for changes in family law is the protection of traditional family.

The authors explicitly state that the changes in current family law are necessary since the Constitution enshrines such provisions as necessity to defend the institution of marriage as a union between a man and a woman, and the new responsibility of the Government to facilitate a universal state policy in Russian Federation to support, strengthen and defend the family, as well as to maintain traditional family values.

The authors of the bill state in the explanatory note:

Traditional family is located outside juridical protection. Its social (exclusive ability to care about family members), historical (the most stable type of familial relations) and political value (interest in social and political stability of social relations) for the Russian society and the state is ignored. This approach to the sphere of marital relations regulation is prerequisite to the destruction of the institution of the family, since it condones any intervention of the state in intrafamilial relations for protection of individual family members.

As we can see, the prognoses on the increase of the authorities support of conservative values and continuing pressure on LGBT citizens of Russia comes into life.

Legislative changes

Federal bill On changes to the Family Code of Russian Federation to strengthen the institute of the family.

The bill contains 112 amendments to 69 out of 170 articles of the Family Code, adds 2 news chapters (12.1 and 18.1) and 27 new articles.

Ban on marriage between persons of the same sex

Changes to the institution of marriage are occasioned by an amendment to the Constitution, which defines marriage as a union between a man and a woman, which is explicitly stated in the explanatory note.

Current edition of the Family Code of Russian Federation does not explicitly ban homosexual marriage. However, according to art.12 of the Code, mutual voluntary consent of a man and a woman is necessary to enter into marriage. This means that currently the authorities do not recognize marriage equality.

The bill adds a special condition to art.14 of the Family Code: marriage between persons of the same sex is not allowed. This amendment enshrines conservative views on marriage as a union of only a man and a woman.

Thus, this amendment does not intrinsically change current marital opportunities for Russian LGBT people. However, it sends out a clear message that marriage equality for LGBT people in Russia is postponed until lawmakers will not liberalize the laws.

Restriction of parental rights

Current law allows restriction of parental rights in cases when it is dangerous for a child to remain in parental care for reasons beyond control of the parent (several mental conditions etc.), or when behaviour of a parent is dangerous for a child, but no sufficient cause for termination of parental rights exists. Restriction of parental rights results in the impossibility to raise a child personally.

Lawmakers are broadening the list of causes for restriction of parental rights, and include new ones: if the parents abuse their parental rights by involving them in criminal acts, administrative infractions and other antisocial actions (art. 73 of the Family Code). Theoretically it might seem that introducing non-traditional family values to a child may be such an action. However, our legal practice shows that propaganda of non-traditional sexual relations in family is impossible. The propaganda ban was adopted to restrict public spread of information on LGBT issues and has been used rarely and inconsistently. Thus, accusing parents of propaganda inside the family, holding them liable and consequently restricting their parental rights cannot ne used in such cases. LGBT parents will not face restriction of their parental rights for gay propaganda.

Ban on becoming foster or adoptive parents for those who entered into homosexual marriage (partnership) abroad and those who have not entered into any marriage but are citizens of states which recognize such marriages.

The bill does not add anything new: currently these categories of people are not allowed to become adoptive parents (para 1.13 art. 237 of the Family Code) and foster parents (para 1 art. 146 of the Family Code), including temporarily. Proposed amendments further clarify these rules without changing current state of affairs.

The situation will not change drastically in the sphere of LGBT family rights.

The situation with transgender rights, however, will worsen drastically.

Transgender rights

Here we look into the second bill, a project of Federal Law On amending specific acts of legislation of Russian Federation due to adoption of the Federal Law On changes to the Family Code of Russian Federation to strengthen the institute of the family (see above).

In brief, the lawmakers propose to change the model of legal gender recognition. However, the text of the bill does not explain clearly how the law is supposed to function.

Current state of affairs

Currently, on receiving the decision of medical commission, a transgender person applies to the Civil Registry Office and receives a new birth certificate with a new gender marker. After that, they can apply for changes in other certificates (e.g. marriage certificate) at their own discretion. The person changes all other documents primarily the passport, which is the main ID in Russia in accordance with their new birth certificate. In order to change the passport, one must file the new birth certificate and the ruling of Civil Registry Office on making corrections or changes to the register for acts of civil status to the Migration Service Department of Ministry of Internal Affairs. After that, a person receives a new passport with the new gender marker.

The lawmakers proposition

Upon receiving the decision of medical commission, a person will apply to the Civil Registry Office. It will issue a ruling on making corrections or changes to the register for acts of civil status but will not make changes to birth record. Consequently, it will not issue a new birth certificate with new gender marker.

This might create two possible scenarios:

 First scenario

Existing model of legal gender recognition implies that one needs a new birth certificate with changed gender marker to get a new passport. In case the bill is adopted, transgender persons will not be able to file such certificates and thus will not be able to change their documents at all. This variant arises in case the law is adopted, but no changes are made to existing legal acts regulating the procedure of passport replacement.

Such situation will deprive transgender people of legal gender recognition in Russia. The authors of the bill might de facto put into practice Hungarian model of denying the possibility of legal gender recognition.

We do not consider this development realistic - however, it is possible. In such case, it is unclear why the bill upholds the demand to present the decision of a medical commission. The reason for that might be that the bill itself is drafted with substantial flaws, or that the first scenario will not be implemented.

Second scenario 

The authorities will make necessary changes to the procedure of legal gender recognition, particularly to receiving a new passport (currently no such projects exist), and will exclude the demand to file a new birth certificate to receive a new passport, but the demand to present a ruling on making corrections or changes to the register for acts of civil status will remain.

In such case, transgender person will have a birth certificate with the gender assigned at birth, and a passport with the actual gender. This scenario looks more realistic.

What does it mean?

Firstly, the system of changing documents will remain. We assume that Russian state will not waive the system altogether; this would be an extremely severe intervention into transgender rights.

Secondly, a bill in case it is adopted will ban marriages for transgender people altogether.

Currently the law does not demand a gender marker to be put in birth certificate: these data are contained in the birth record, and birth certificate is issued on the basis of birth record, without specifying the childs sex. The bill prescribes to include gender marker into the birth certificate.

Also, current procedure demands partners to produce a passport to enter into marriage. The gender marker in the passport confirms the sex of people entering into marriage. In case the bill is adopted, the registrar general might demand a birth certificate from both persons entering into marriage.

In this case, the discrepancy will appear between gender marker in the passport and in the birth certificate. Thus, in case the bill is adopted, Civil Office Registers will deny any marriage to transgender persons.

The final issue with this amendment is that it is retroactive: if the bill is adopted, all transgender persons who have changed their documents will have to receive their old birth certificate (with the gender assigned at birth) before January 1, 2022.

And lastly:

-        In case the bill is adopted, out of all spectrum of LGBT people, only bisexual persons will be able to marry, and only to the person of opposite gender;

-        If a transgender person wishes to marry a person of opposite legal gender in Russia, it is best to do it as soon as possible. We do not know if the bill will be adopted, but in any case transgender persons can marry until it is adopted.

What do we do now?

We will demand to change the bill, specifically to erase transphobic amendments proposed on the grounds of biological approach to transgender needs (or rather neglect of needs of transgender persons).

In particular, we will demand to preserve the existing model of legal gender recognition, to erase the demand to change back the birth certificates of transgender persons, and to exclude the actual ban for transgender people to marry.

Soon we will announce a public campaign and will tell about our next steps.

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