Originally from The Journal of Eurasian Law (JEL)

Abstract: The Russian Federation, along with several of its constituent republics and regions, has recently enacted laws prohibiting “Gay Propaganda” and restricting the adoption of children to countries which recognize same sex marriage. The Russian laws have been adjudicated and found constitutional, as reasonable restrictions on fundamental rights necessary to secure state interests in protecting the family and ensuring reproduction. At the same time, the Russian laws are violations of Russia’s international obligations to respect the fundamental right of free speech under the European Convention of Human Rights and the International Covenant on Civil and Political Rights. This article examines the application of the proportionality principle in Russian constitutional law and international human rights law to explain why the results differ. It also explains the political dynamics which shape and will shape the construction of LGBT rights in Russia.

I. Introduction

Recently, several laws enacted by the Russian Federation,1 Russia’s federal republics,2 several Russian cities3 and regions4 restrict the rights of homosexuals5 to voice political protest6 and to adopt children.7 These laws, which restrict the fundamental rights of free expression and to found and raise a family, have been adjudicated and are constitutional under Russian law, as justified for the “prevention of riots and protection of health, morals and the rights and freedoms of others,”8 i.e. to maintain public order and/or to protect children9 and foster reproduction.10