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.

TGEU, ILGA-Europe, and IGLYO, the three largest networks of LGBTI and trans organisations working in Europe and Central Asia, are calling on the Parliament of Kazakhstan to remove the age limit from their proposed amendment No. 539 to the draft “Code on the health of the people and the healthcare system”.

The proposed amendment will make it impossible for trans people between the ages of 18 and 21 and trans people with “behavioural disorders” of all ages to exercise their right to legal gender recognition and other fundamental human rights set out in international human rights treaties ratified by Kazakhstan.

Member of Majilis, the Parliament of Kazakhstan, Zauresh Amanzholova proposed the Amendment No. 539 to Article 156 “Change of sex” in the draft  “Code on the health of the people and the healthcare system.” The proposed amendment will increase the existing age limit from 18 to 21. This amendment is against the main principle of equal protection of the law and equality before the law guaranteed by Article 14 of the Constitution of Kazakhstan. The proposed change leads to the discrimination of the group of Kazakhstani citizens based on their identity as it singles out trans people in recognition of their legal age by the state.  In addition, the amendment was introduced by the Majilis after the second Parliamentary hearing, leaving no opportunity for public consultation of interested parties as guaranteed by the laws “On public services” and “On access to information”. 

We regret that civil society and expert organisations have not been involved in this process so far. 

Amendment No. 539 will also limit trans young people’s access to trans-specific healthcare. This amendment goes against the right to health protection recognised by Article 18 of the Constitution of Kazakhstan. The real-life impact of not being able to socially and/or medically transition is enormous. Denying access to medical care to trans people between 18 and 21 is overt discrimination on the grounds of gender identity, as well as on the basis of age. In addition, it goes against the right to the enjoyment of the highest attainable standard of physical and mental health, and the principle of non-discrimination, as envisaged in the WHO Constitution and the Universal Declaration of Human Rights. The trans community must be legally protected against the existing discrimination, and not further marginalised by the authorities.

We condemn this action by the Parliament of Kazakhstan and call for a revision of Article 156 that considers civil society and expert organisation’s views!

Following the requests of the local trans community, we call upon the Parliament of Kazakhstan to:

• Withdraw age restriction and “behavioural disorder” restriction;
• Revise the terms used in the draft Code such as the  “sex change” and “persons with sexual identity disorder and replace them with “gender-affirming care” and “persons with gender incongruence” respectively, in line with ICD-11, Kazakhstani legislation, and international standards;
• Increase support to the trans community with legal protections in terms of healthcare and legal gender recognition without discrimination.

TGEU, ILGA-Europe, and IGLYO call on the Parliament of Kazakhstan to review Article 156 as soon as possible. Further, we call on international human rights actors to raise awareness of this issue and support the human rights of trans people in Kazakhstan.

In what is seen as a first legal victory for LGBTIQ rights in Kazakhstan, the Central Asian country’s Supreme Court has overturned a decision by the Court of Appeal, saying it “committed a substantial and gross violation of the right to self-portrayal under Article 145 of the Civil Code and infringement of the constitutional rights” of a lesbian couple.

A controversial case that took a year and a half for Kazakhstan’s court system to hear has turned out to be the first legal victory for LGBTIQ rights in Kazakhstan.

In January 2018, two young women (unnamed for ethical reasons) were filmed kissing at a cinema in the city of Almaty by a man, Eldar Mamedov. Mamedov posted the video to Facebook, where it was viewed over 60,000 times and reposted on various other social networks. The faces of both women were fully identifiable and they were subsequently recognised on the streets, and asked questions like, “Have you not been killed yet?”

Comments under the video posted by Mamedov included death threats, calls for violence and other hate speech. Fearing for their safety, the two young women were forced to leave Kazakhstan for eight months.

On 19 February 2018, the women filed a lawsuit in the Auezov District Court of Almaty claiming that the fact of the distribution of the video without their consent was illegal. They said Mamedov’s distribution of the video on Facebook was unlawful, claiming nominal damages against the defendant. The women were supported by the Kazakhstan Feminist Initiative “Feminita”, while the LGBTIQ community also rowed in to support their case. Events were held to raise money to partially cover costs for legal support.

The District Court found in favour of the plaintiffs on 18 May last year, granting nominal compensation damages of 15,000 tenge (35 euro), so the women could not be accused of ‘cashing in’ on their circumstances. Mamedov filed an appeal with the Almaty City Court.

“Defender of morals”

On 17 August 2018, the Almaty City Court found in favour of Mamedov, overturning the District Court’s decision. Citing Article 20 of the Kazakhstani Constitution on the right to freely receive and disseminate information in any way not prohibited by law, the court added: “[our] society is not ready for open sexual relations between people of the same sex, the Law On Marriage and Family allows a legal union only between a man and a woman, same-sex unions are not allowed by the current legislation of the Republic of Kazakhstan.”

Saying the actions and behavior of the plaintiffs openly violated “the morale and moral foundations of society,” the court concluded that Mamedov “acted as a defender of the morals of the population.”

“Actions in the eyes of the majority of society are considered immoral and obscene, and the fact that this happens in front of children is generally immoral and affects the mental consciousness of children,” the judicial board said.

However on 30 July this year, the Supreme Court found in favour of the women, heavily criticising the decision of the Court of appeal to uphold Mamedov’s appeal. In its decision, the Supreme Court said that: “the Court of Appeal committed a substantial and gross violation of the right to self-portrayal under Article 145 of the Civil Code and infringement of the constitutional rights of plaintiffs” guaranteed by Article 18 of the Constitution of the Republic of Kazakhstan, according to which everyone has the right to privacy, personal and family secrets, protection of one’s honor and dignity. 

An important message

Commenting on the Supreme Court’s decision, co-founder of “Feminita”, Zhanar Sekerbayeva said: “This will be a lesson for people in Kazakhstan who proclaim the struggle for morality. The violation of human rights and a call for hatred did not go unpunished. Both young women and our team repeat this important message: sue if your rights are violated! We are glad that the “Feminita” team supported the young women and we walked with them to the end! Thanks to everyone who was in solidarity with us!”

According to Björn Van Roozendaal, Programmes Director with ILGA-Europe, “A judicial precedent has been set and we sincerely commend persistence, patience and courage of the couple who stood up for their rights. We also congratulate our partners “Feminita” team, one of the initiative groups in the forefront of defending LBQ women’s rights in Kazakhstan, who have been with the couple from the start to the end.”

In a statement given to “Feminita”, one of the women said: “On 30 July, we left the courtroom with relief that finally, after a year and a half, we reached the end and we were not alone on this path. And it all started from the moment when we decided to spend a cozy evening and just watch a movie.”

The second woman added: “Few believed that we would defend our rights in court. Those who did not believe argued that our society was not yet ready for such changes. Many advised me not to be a “pioneer”, since it is pointless and useless, saying, “nothing will change anyway.” I believe that the opinion of society should not affect the struggle for our rights. If not you yourself, then who else will stand up for you?”

This story is based on the article of Kazakhstan Feminist Initiative “Feminita”. The original text may be accessed here.