ILGA-Europe stands with Kazakhstan’s LGBTI Community amid Russia-style attempts to criminalise LGBTI people and their human rights

ILGA-Europe express solidarity with the LGBTI community in Kazakhstan as they face legislative proposals which will worsen the already exacerbated situation of the LGBTI community in the country. Two concerning anti-LGBTI legislative initiatives that were voiced last week by two separate groups of members of Kazakhstan’s Parliament threaten the fundamental rights and freedoms of LGBTI individuals in Kazakhstan.

The initiative by the Parliament members Aimagambetov and Ashimzhanov (both from Amanat Party) attempt to introduce a legal prohibition for mass media to write about “non-traditional sexual orientation”. In the same week, Parliament members Zhanbyrshin and Musabaev (also from Amanat party) introduced a draft amendment to include so-called “propaganda of non-traditional sexual relations” in the “discord incitement” provision 174 of the Criminal Code and to prohibit peaceful assemblies on the same ground.

Such initiatives aim to divert attention from pressing issues like natural disasters that the entire northern and western Kazakhstan has been suffering for the past few weeks, with so many villages and towns affected, and over 100,000 people relocated, as well as the nation’s worsening socioeconomic situation and rising public call for the elimination of domestic violence. We call on the Kazakhstan Government to not arbitrarily target the LGBTI community and violating the principles of non-discrimination enshrined in the Constitution of Kazakhstan.

In the past couple of weeks, according to some media reports and from information spreading in messenger chats, the Law Enforcement of Astana have been illegally raiding nightclubs, specifically targeting LGBTI people. This is demonstrative of how such anti-LGBTI discourse and initiatives directly reflect on the safety of LGBTI people.

Kazakhstan’s current legislation does not protect LGBTI people from bias-motivated crimes, places discriminatory and humiliating barriers for legal gender recognition, bans same sex marriage and adoption by LGBTI persons, among many other pressing issues. The existing provisions restricting human rights of LGBTI people and any further attempts to do so contradict Kazakhstan’s international legal commitments, including the implementation of Recommendation No. 139.48 within the Kazakhstan’s previous reporting under Universal Periodic Review cycle, which calls for creating an enabling environment for LGBTI activist groups and human rights defenders.

We are also deeply concerned about the implications of amending Article 14 of the Law on Peaceful Assemblies, which would restrict the right to peaceful assembly for the LGBTI community and other civil society actors. This move further marginalises an already vulnerable community and threatens the democratic principles Kazakhstan aspires to uphold.

ILGA-Europe denounces any attempts to introduce discriminatory legislation that targets the LGBTI community. The LGBTI community in Kazakhstan deserves legal protection and recognition without discrimination.

We urge the Parliament to refrain from any future attempts of adopting anti-LGBTI legislation, and start to engage in meaningful dialogue with civil society and expert organisations to ensure the protection of LGBTI rights. We call on Kazakhstan to uphold its constitutional duty to protect the rights of all citizens, including on the grounds of sexual orientation or gender identity.

We call upon the International Partners of Kazakhstan to join us in reinforcing the dialogue on asking the Government of Kazakhstan to work towards improving the situation with human rights of LGBTI people.

ILGA-Europe stand in solidarity with the LGBTI community in Kazakhstan and reaffirm our commitment to supporting their struggle for equality, dignity, and respect. We encourage individuals and organisations to join us in speaking out against discrimination and advocating for the rights of all LGBTI individuals in Kazakhstan.

BACKGROUND

On February 11, the Ministry of Information of Kazakhstan blocked the selftanu.kz website which aimed at raising awareness of LGBTI teenagers about their rights and providing them with information on healthcare and reproductive rights, among others. The Ministry justified its decision that the information on the website violates the norm of the legislation on preventing dissemination of information that would cause harm to the health and development of children.

On February 23, Kazakhstan’s President Tokaev signed the law preventing LGBTI people from mentoring orphans. When asked how the authorities would identify LGBTI identity of prospective mentors, the Vice-Minister of Education of Kazakhstan Natalia Zhumadildaeva stated that LGBTI people would be prevented from adopting and mentoring orphans according to these provisions. She claimed that the Ministry had developed a special psychological test for such purposes. Again these are non-scientific and inhumane approaches that contradict common sense and go against Kazakhstan’s national and international commitments to uphold human rights and non-discrimination.

On March 5 the authorities of the Almaty Mayor’s office responded to questions why it had prohibited the women’s inclusive rally dedicated to International Women’s Day marked on March 8. Almaty authorities recalled that over the past few years, representatives of feminist movements have already held authorised rallies on March 8. But officials were unhappy that during the protests the organisers and participants “repeatedly deviated from the stated topic.” They claimed that there had been numerous requests from different citizens not to allow the women’s rally, because reportedly “In appeals to them and in messages on social networks, the organisers of the rally, under the guise of the fight for women’s rights, actually promoted non-traditional values that were alien to Kazakh society such as same-sex relationships, marriages, LGBT symbols and others. And, in order to ensure the safety of participants in peaceful assemblies, in order to avoid violation of the rights of city residents and other persons, and to prevent violation of public safety by the Almaty authorities, a decision was made not to approve the rally of feminist organisations”.

On April 5, within the discussions of amendments to the Law on Mass Media, the first initiative was put forward by Parliament Members Askhat Aimagambetov and Zhanarbek Ashimzhanov (both from Amanat Party) to include provisions that would ban Mass Media from mentioning anything about LGBTI. This was followed by another more restrictive initiative on April 10 by Parliament Members Edil Zhambyrshin and Samat Musabaev (also from Amanat Party). In particular, they proposed an amendment to Article 174 of the Criminal Code (“Inciting social, national, tribal, racial, class or religious hatred”) to include criminal charges for those who break the law and publicly mention about LGBTI. Although, both provisions did not make it to the second reading of the bill and when it was passed to the upper Chamber of the Parliament. However, LGBTI activists fear these amendments may resurface as the initiators made it clear they would not withdraw their attempts to follow through.

For the past couple of weeks, according to media reports and information shared on messenger chats, law enforcement in Astana has been illegally raiding night clubs and specifically targeting LGBTI people under the false pretence of preventing illegal proliferation of drugs. Reportedly the police are also raiding private parties organised in apartments and houses, as well as nightclubs that are not specifically LGBTI-themed.

ILGA-Europe expresses solidarity and stands with LGBTI organisations and communities in Kyrgyzstan as the country’s President signed into law a discriminatory provision banning dissemination of information about LGBTI people, rights, and identities among minors.

We firmly assert that this specific provision in the new legislation does not protect anybody; instead, it deprives LGBTI children from access to services and support that they need to thrive and puts them at risk of harassment, violence and a generally hostile environment. The damaging effects of similar Russian legislation on the lives of children, as well as on the lived realities of LGBTI people in general, are well-documented.

Information about LGBTI people and identities is listed in the new law on a par with violent or pornographic content, and the adoption and discussion of this law unfolded in parallel with smear campaigns against LGBTI organisations, activists, and communities in Kyrgyzstan. This confirms that the new law is a deliberate attempt to stigmatise LGBTI people and to fuse LGBTI people and identities with abuse of children and exposing children to harm.

Finally, just like previously in Russia, Poland and Hungary, this legislation comes along with other anti-democratic developments, such as the draft law on media and the attempts to outlaw foreign funding, and is a precursor of other attempts to limit the space of independent civil society and media. It sounds an alarm for the entire civil society in Kyrgyzstan and its partner and ally organisations and demands a united front across different parts of the country’s civil society as well as international supporters, funders, and allies.

Together with our members and partners, ILGA-Europe will continue to advocate for the rights of LGBTI people in Kyrgyzstan and will be rallying support and solidarity for LGBTI organisations and their allies in the country.

Now that LGBTI organisations in Kyrgyzstan need to take their time to assess the situation and plan ahead, we encourage all supporters and allies to not rush to action but follow the lead of the LGBTI organisations in the country. It is also a moment for all of us to consider where our positions and resources could be most helpful, immediately and in the long term. Be it documenting the effects of the law on the rights and freedoms of LGBTI people and their allies, advocating for its repeal, offering security support, building solidarity across the civil society, or otherwise supporting different communities to counter the gaps and risks created by this law.

Background

On 15 August, Kyrgyzstan enacted a new law that aims to restrict freedom of expression and access to information about LGBTI people, identities, rights, and lives.

Formally, the law seeks to ban dissemination of harmful information among minors, while labelling as harmful also information that “denounces family and traditional societal values, promotes non-traditional sexual relations and initiates disrespect towards parents or other family members.” This language echoes the ‘anti-propaganda’ laws that are in place in Russia and Hungary.

The law comes into force on 30 August, 15 days after its publication.

The official title of the law is “On introducing amendments to several legal acts of the Kyrgyz Republic”, and it amends the Code of Misdemeanors, the law “On measures to prevent harm to children’s health, physical, intellectual, mental, spiritual and moral development in the Kyrgyz Republic”, and the law “On Mass Media”.

Dissemination of “harmful information” will lead to fines of up to 5,000 soms (around 52 euro) for individuals, and up to 25,000 soms (around 260 euro) for legal entities.

This has been the third attempt to adopt a so-called ‘anti-propaganda’ law in Kyrgyzstan. The first two attempts in 2014 and 2015 did not succeed in writing discrimination against LGBTI people into law.

Attempts to target LGBTI people and the civil society in general are seen by activists in the country as attempts to distract public attention from major issues in Kyrgyzstan such as increasing electricity prices, shortage of irrigational water supplies due to drought across the country, and many other socio-economic problems that the Government of Kyrgyzstan has been struggling to address.

A referendum to be held this coming Sunday during the Hungarian general elections carefully designed to force voters into siding with the current ruling party, Fidesz, against the LGBTI community.

On April 3, the same day as the Hungarian general elections, the ruling Fidesz party will hold a referendum asking the public to validate anti-LGBT legislation that was introduced last year.

The law, banning the “portrayal and the promotion of gender identity different from sex at birth, the change of sex and homosexuality”, was decried by a majority of member states of the European Union, and led the European Commission to take infringement procedures against Hungary.

The referendum, which will be held on the same day as the Hungarian general election will ask four questions:

• Do you support the teaching of sexual orientation to minors in public education institutions without parental consent?
• Do you support the promotion of sex reassignment therapy for underage children?
• Do you support the unrestricted exposure of underage children to sexually explicit media content that may affect their development?
• Do you support the showing of sex-change media content to minors?

However, it is clear from polls and actions of the Hungarian people that state-sponsored anti-LGBTI rhetoric and legislation is not matched by public opinion. Support for LGBTI people in Hungary has never been as high. A record 35,000 people marched at Budapest Pride last July, including many MEPs and other European officials.

According to a representative poll commissioned by Amnesty International Hungary and Háttér Society and conducted by polling agency Medián between 13 and 19 July 2021, 73% of Hungarians reject the government’s false claim that gay and lesbian people abuse or harm children. A clear majority of Hungarian society (74,5%) believe that transgender people should be able to change their gender and name in their official document, while 59% support same-sex marriage.

According to ILGA-Europe’s Advocacy Director, Katrin Hugendubel: “The referendum is in bad faith and specifically timed as part of Prime Minister Viktor Orbán’s continued effort to scapegoat LGBTI people as a method of holding onto power, by distracting from the gross failings and corruption of his government. The questions it poses are carefully designed to force voters into siding with Fidesz against the LGBTI community, thereby giving the false message that the values of the Hungarian people are contrary to the values of the European Union.”

Due to the fact that the referendum coincides with the elections, LGBTI activist organisations in Hungary are not calling for a boycott. Rather they are asking for people to invalidate their referendum vote, since the questions it poses are not in good faith

As the European Commission takes the second step in its infringement procedure against Hungary, Europe’s leading LGBTI organisation welcomes its clarified commitment to the equal human rights of the people of Hungary and all other EU member states.

Today, 2 December 2021, the European Commission (EC) began the second phase of its infringement procedure against EU member state, Hungary, due to discriminatory amendments adopted on 23 June in the country, which ban the “portrayal and the promotion of gender identity different from sex at birth, the change of sex and homosexuality”.

On 15 July 2021, the European Commission formally notified Hungary of the beginning of infringement proceedings regarding the amendments. The Hungarian Prime Minister, Viktor Orbán responded by accusing the Commission of “legalised hooliganism” and announcing plans to call a referendum on the amendments, falsely insisting that the infringement procedures specifically seek to interfere in the Hungarian education system. Since then a number of Hungarian government officials have similarly sought to mislead the Hungarian and European public in regard to the content of the infringement procedures.

Today the Commission said that it finds Hungary’s official response to its notification insufficient, and it has therefore started the second phase of the infringement process by sending Hungary a letter known as a “reasoned opinion”, outlining the parts of the new Hungarian law that are breaching EU law, and demanding that these are changed. The EC also identified that even more EU laws are being breached by the amendment, and contrary to claims from the Hungarian government, it did not mention any educational directives in its reasoned opinion.

Instead it clarified that it is specifically concerned with breaches to fundamental EU law when it comes to the freedom to provide services and the free movement of goods. Hungary, the Commission says, has not shown how restrictions in its legislative amendments are duly justified, non-discriminatory, and proportionate.

In addition, the EU clarified breaches of the Audiovisual Media Services Directive and the e-commerce Directive, citing restrictions in the amendments regarding audiovisual media content, including discrimination based on sexual orientation.

The Commission also deems that the Hungarian amendments violate human dignity, freedom of expression and information, the right to respect of private life as well as the right to non-discrimination as enshrined in Articles 1, 7, 11 and 21 of the EU Charter of Fundamental Rights, and due to all of this, the amendments violate Article 2 of the Treaties of the European Union.

According to Katrin Hugendubel, Advocacy Director with Europe’s leading LGBTI organisation, ILGA-Europe: “The Hungarian government keeps twisting the facts and stating that it is protecting children and acting on the will of its people with these amendments. Both statements are patently false. The amendments are an attack on children’s rights as well as the rights of LGBTI people. Contrary to the amendments reflecting the will of the people, support for LGBTI equality is growing in Hungary.

“With these amendments and his referendum, Orbán is running a campaign in advance of elections next year, hoping to distract from the massive problems his government is responsible for by scapegoating the LGBTI community. The EC is right to hold the Hungarian government accountable to the Treaties, and should not hesitate to see this through, including by bringing Hungary in front of the Court of Justice of the European Union (CJEU).”

Hungary now has two months to remedy the breaches identified by the Commission. If they do not amend the law to remove the breaching anti-LGBTI provisions, then the Commission will refer the case to the CJEU.

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For further comment, contact: Ana Muñoz Padrós, ILGA-Europe: ana@ilga-europe.org, +32 493 35 60 55

For Russian LGBTI groups, along with the rest of the civil society in the country, 2021 started with the arrival of new barriers to their work.

Law on ‘foreign agents’ extended to individuals and unregistered groups

On 30 December 2020, the amendments to the existing ‘foreign agents’ legislation were signed into law. The ‘foreign agent’ status now applies to anyone receiving funding or other assistance from a foreign entity directly or via Russian organisations or citizens, while having membership in a political party, making “public appeals” for changes in the legislation, engaging in “dissemination of opinions” about officials, carrying out opinion polls “in the interests of a foreign source”. The list of ‘political activities’ also includes “purposeful collection of information in the field of military and military-technical activities” of Russia.

These amendments also extend the ‘foreign agents’ law to apply to unregistered associations that engage in ‘political activities’ and receive funding or other assistance from abroad.

Such individuals and associations are now required to join the registry of ‘foreign agents’ and to report to the Ministry of Justice about their income and expenses, as well as any assets that they receive from abroad. ‘Foreign agents’ cannot become civil servants and cannot have access to state secrets. They are required to label all their communications and publications accordingly, informing the public of their ‘foreign agent’ status.

Criminal liability for those failing to comply with the ‘foreign agents’ law

On 30 December 2020, another amendment to the ‘foreign agents’ was signed into law. It institutes criminal liability for individuals and organisations that were recognized as ‘foreign agents’ but failed to comply with the ‘foreign agents’ law, i.e. those who have previously been found guilty of administrative offences in relation to their ‘foreign agents’ status and have not resolved these violations (e.g. voluntary registration as ‘foreign agents’, labeling communications and publications, or reporting to the Ministry of Justice). Now repeated failure to comply with the ‘foreign agents’ legislation is punishable by up to 5 years in jail.

Restrictions on fundraising for public events

Again on 30 December 2020, two new bills were signed into law and thus amended the current federal laws on public assemblies. Now fundraising and spending for public events are regulated by law. A ban is introduced on the financing of a public event from foreign sources: from foreign states, foreign and international organizations, international movements, foreign citizens (with the exception of permanently residing in Russia), foreign NGOs, minors and anonymous donors, as well as legal entities registered less than one year before the fundraising campaign.

For public events with more than 500 participants fundraising can only be done through a dedicated bank account in a Russian bank. The collected funds can only be used for the public event that was indicated at the time of opening the bank account. Organisers are required to report on the spending after the public event.

Additionally, by a court decision, the term ‘public event’ can cover, inter alia, a series of one-person pickets, individuals taking turns to protest solo, as well as “mass simultaneous presence or movement of citizens in public places, aimed at expressing and forming opinions, making demands on various issues of the country’s political, economic, social and cultural life and foreign policy issues.” 
 

“Anti-propaganda” laws

(Application Nos: 67667/09, 44092/12, 56717/12), February 2014 

Find Court’s judgement here. (violation of Articles 10 and 14 of the Convention)

• The present cases arise from the prosecution of three individuals under legislation adopted locally in Russia, prohibiting propaganda of homosexuality among minors and penalising propaganda of bisexuality and transgender identity among minors.
• ILGA-Europe, together with “Coming Out” (the Russian LGBT Network) submitted the following:
  • These initiatives have been accompanied by homophobic rhetoric at the highest levels of government, repeatedly stigmatising LGBT people as a danger to children. “Propaganda” laws have been used to restrict freedom of assembly, to prohibit events, to prosecute individuals and to arrest participants in a demonstration.
  • European and international bodies have recognised the need to provide relevant, appropriate and objective information about sexual orientation and gender identity, to prevent mental health and sexual health issues.
• The European Court of Human Rights delivered its judgement on 20 June 2017.
• The Court referred to the interveners’ concern about discrimination and violence against LGBT people in Russia, hate crimes, bullying and harassment of LGBT children, pressure on same-sex couples and the children they are raising and on LGBT advocacy organisations (para 60). The Court found that the legal provisions in question did not serve to advance the legitimate aim of the protection of morals, and that they were likely to be counterproductive in achieving the declared legitimate aims of the protection of health and the protection of rights of others.
• Above all, by adopting such laws the authorities reinforce stigma and prejudice and encourage homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society. Because the legislation also embodies a predisposed bias on the part of the heterosexual majority against the homosexual minority, it gives rise to a violation of Article 14 of the Convention taken in conjunction with Article 10.