Rainbow Family Rights in Europe – Part 4: At a Crossroads in Ukraine

Several pathways for partnership rights were part of the Ukraine took in EU-Ukraine Association agreement 2014-2016.

Based on it the Ukrainian government developed a human rights strategy plan 2013-2019 which included specific commitments to LGBT rights, but many elements of this strategy were not implemented, and civil partnership was dropped from it. However, post-revolution and against the backdrop of Russia’s ongoing military intervention, it is a crossroads time for LGBTI and partnership rights in the country.

In the fourth part of our mini-series on rainbow family rights, during which we we’re looking at the issues affecting LGBTI partners, parents and their children across Europe, we are joined by activists Olena Shevchenko, from the Kyiv-based organisation, Insight and Andriy Maymulakhin, from Nash Mir in the city of Luhansk, about the outlook for partnership rights in Ukraine.

Rainbow Family Rights in Europe – Part 1: The Coman Case Three Years On

Three years ago, Adrian and his partner Clai were successful bringing their case to the Court of Justice of the European Union, which judged that same-sex spouses are fully recognised as spouses under the EU freedom of movement directive.

As a result, Adrian and Clai, who is American, should have been granted a residence permit in Romania. To this day, the judgement has not been enacted by the Romanian state, and in December 2020, the couple took their case to the European Court of Human Rights to finally get their rights recognised.

We’re also joined by Arpi Avetisyan, head of litigation at ILGA-Europe, to talk about the wider implications of the latest developments in the Coman case.

Listen: Rainbow Family Rights in Europe in 2021 and Beyond

ILGA-Europe’s podcast The Frontline presents a brand-new mini-series looking at the many issues affecting LGBTI parents and their children across Europe.

Presented by ILGA-Europe, The Frontline is a podcast about LGBTI activism and lives in Europe and Central Asia. Deep-diving and analysing from a unique and informed perspective, The Frontline aims to bring you to the core of queer activism and give you an understanding on the complexities of what’s happening, why it’s happening, the wins and the losses, the challenges and commonalities, and the extraordinary ways in which the work of those on the frontlines continues in a rapidly changing world.

The latest mini-series from The Frontline explores rainbow family rights, and the lack thereof, in Europe. We look at two landkark cases being taken to the European courts, explore partnership rights in the Western Balkans and Ukraine, discuss the rights of trans parents, and evaluate the issues that are coming up beyond 2021.

Here are all the episodes:

Part 1: The Coman Case Three Years On

We meet Adrian Coman from Romania. Three years ago, Adrian and his partner Cole were successful bringing their case to the Court of Justice of the European Union, which judged that same-sex spouses are fully recognised as spouses under the EU freedom of movement directive. As a result, Adrian and Cole, who is American, should have been granted a residence permit in Romania. To this day, the judgement has not been enacted by the Romanian state, and in March 2021, the couple took their case to the European Court of Human Rights to finally get their rights recognised. We’re also joined by Arpi Avetisyan, head of litigation at ILGA-Europe, to talk about the wider implications of the latest developments in the Coman case.

Part 2: Baby Sara, Stateless Child

We meet Kalina and Jane, from Bulgaria and the UK respectively. Because their daughter Sara was born in Gibraltar, she cannot claim UK citizenship via Jane, so the couple applied to have her registered in Bulgaria. The Bulgarian authorities refused, therefore leaving Baby Sara stateless.

Kalina and Jane brought a case against the Bulgarian authorities to the EU Court of Justice, which was heard in March 2021. They join us to talk about their current situation, the case, and what it means to their family. We’re also joined by Arpi Avetisyan, Head of Litigation at ILGA-Europe, to talk about the wider implications of the case.

Part 3: The Western Balkans

We’re joined by Danijel Kalezi?, president of the Governing Board of Queer Montenegro, which helped usher in legislation for civil unions for same-sex couples, which were signed into law last year, making Montenegro the second Western Balkans country, after Croatia, to do so. Danijel is with us to talk about the journey so far in Montenegro, and the state of play for same-sex partnership rights across the Western Balkans.

Part 4: At a Crossroads in Ukraine

Several pathways for partnership rights were part of the Ukraine took in EU-Ukraine Association agreement 2014–2016. Based on it the Ukrainian government developed a human rights strategy plan 2013–2019 which included specific commitments to LGBT rights, but many elements of this strategy were not implemented, and civil partnership was dropped from it. However, post-revolution and against the backdrop of Russia’s ongoing military intervention, it is a crossroads time for LGBTI and partnership rights in the country. We’re joined by activists Olena Shevchenko, from the Kyiv-based organisation, Insight and Andriy Maymulakhin, from Nash Mir in the city of Luhansk, about the outlook for partnership rights in Ukraine.

Part 5: The Rights of Trans Parents and their Children

In March 2021, Transgender Europe (TGEU) published the report, β€œStuck on the swing: experiences of trans parents with freedom of movement in the EU”, in which 18 trans parents from across Europe shared their stories and thoughts. The report found that trans parents and their families face serious barriers when it comes to moving safely and freely across the European Union. In the fifth part of our mini-series, we talk to Senior Policy Officer with TGEU, Richard KΓΆhler, and Slovenian trans-activist, Lea Aymard, one of the parents featured in the report, about the current state of play and ways forward.

Part 6: The Future

ILGA-Europe’s advocacy director, Katrin Hugendubel and BjΓΆrn Sieverding from the Network of European LGBTIQ Families explore the issues coming down the line in terms of rainbow family rights, including direct child-parent recognition from birth, equal opportunities for children to find new parents by adoption or foster care, access to ART (including funding), and multi-parenting possibilities.

Rainbow Family Rights in Europe – Part 2: Baby Sara, Stateless Child

We meet Kalina and Jane, from Bulgaria and the UK respectively. Because their daughter Sara was born in Gibraltar, she cannot claim UK citizenship via Jane, so the couple applied to have her registered in Bulgaria. The Bulgarian authorities refused, therefore leaving Baby Sara stateless.

Kalina and Jane brought a case against the Bulgarian authorities to the EU Court of Justice, which was heard in March 2021. They join us to talk about their current situation, the case, and what it means to their family. We’re also joined by Arpi Avetisyan, Head of Litigation at ILGA-Europe, to talk about the wider implications of the case.

Rainbow Family Rights in Europe – Part 6: The Future

ILGA-Europe’s advocacy director, Katrin Hugendubel and BjΓΆrn Sieverding from the Network of European LGBTIQ Families explore the issues coming down the line in terms of rainbow family rights, including direct child-parent recognition from birth, equal opportunities for children to find new parents by adoption or foster care, access to ART (including funding), and multi-parenting possibilities.

Rainbow Family Rights in Europe – Part 5: The Rights of Trans Parents and their Children

In March 2021, Transgender Europe (TGEU) published the report, β€œStuck on the swing: experiences of trans parents with freedom of movement in the EU”, in which 18 trans parents from across Europe shared their stories and thoughts. The report found that trans parents and their families face serious barriers when it comes to moving safely and freely across the European Union.

In the fifth part of our mini-series on rainbow family rights, during which we we’re looking at the issues affecting LGBTI partners, parents and their children across Europe, we talk to Senior Policy Officer with TGEU, Richard KΓΆhler, and Slovenian trans-activist, Lea Aymard, one of the parents featured in the report, about the current state of play and ways forward.

Rainbow Family Rights in Europe – Part 3: The Western Balkans

We are joined by Danijel Kalezi?, president of the Governing Board of Queer Montenegro, which helped usher in legislation for civil unions for same-sex couples, which were signed into law last year, making Montenegro the second Western Balkans country, after Croatia, to do so.

Danijel is with us to talk about the journey so far in Montenegro, and the state of play for same-sex partnership rights across the Western Balkans.

Opinion from European court: same-sex parented families should be officially recognised in all EU member states

Advocate General of the Court of Justice of the European Union’s opinion says that Bulgaria’s lack of recognition for same-sex parented families cannot justify a violation of EU freedom of movement law

Leading LGBTI rights organisations in Europe are very encouraged by the Advocate General of the Court of Justice of the European Union’s (CJEU) opinion, published yesterday in the case of V.M.A. v Stolichna obshtina, in which a same-sex couple who were refused a birth certificate in Bulgaria for their newborn daughter claim the Bulgarian authorities are violating the rights of a European citizen on the grounds of sexual orientation, namely to free movement, and to private and family life. This constitutes a breach of the fundamental principles of the EU.

The Advocate General (AG) clearly states that the refusal of the Bulgarian authorities to draw up the requested birth certificate constitutes an impediment to the rights which EU law confers on V.M.A. and that child.

According to the AG, the obligation to recognise the family relationships, which are established in Spain, for the sole purpose of applying the EU right to freedom of movement of citizens does not alter the concept of parentage or marriage under Bulgarian family law, and thus does not threaten the fundamental expression of national identity, while removing a significant number of the obstacles to freedom of movement, such as the uncertainties surrounding the right of residence of the child’s British mother or the possibility for that mother to move freely with the child.

Having regard to the limited impact of that obligation on the Bulgarian legal order, the refusal to recognise the parentage of the child as regards V.M.A. and her wife for those purposes goes beyond what is necessary to preserve the objectives relied on by Bulgaria. Bulgaria thus may not refuse to recognise the parentage of the child for the purpose of applying the EU secondary law relating to the free movement of citizens on the ground that Bulgarian law does not provide for either the institution of same-sex marriage or the maternity of the wife of a child’s biological mother if the child is a Bulgarian national.

According to Katrin Hugendubel, Advocacy Director of ILGA-Europe: β€œThe opinion is pointing in the right direction, as it clarifies that parentage established in one member state must be recognised for reasons of freedom of movement across the EU, and all EU citizens and their families equally enjoy freedom of movement. As already confirmed in Romanian Coman case, arguments on β€œnational identity”, namely that Bulgaria does not recognise rainbow families, cannot justify a violation of EU law.” 

Eleni Maravelia, President of NELFA, the Network of LGBTIQ* Families Associations, says: β€œNELFA is very pleased with the opinion of the AG, who is giving a clear answer to Bulgaria and all EU member states that EU law has to be respected at all times when dealing with cross-border issues, even when it comes to rainbow families with children who might not be covered by the national legislation. We are hoping the final decision by the court will take under consideration the AG opinion and build on it so to include the protection of the rights of the child.”

According to attorney, Denitsa Lyubenova, legal representative of the family and member of the Legal Programme of LGBTI Organisation, Deystvie: β€œWe are still awaiting the ruling of the Court of Justice of the European Union, but we believe that the Advocate General’s opinion is a step forward recognising same-sex families across Europe. Law changes slowly, with small steps and a lot of perseverance. A ruling in the direction set by the Advocate General will bind Bulgaria to establish the family relationship between the child Sara and her two mothers. Maybe it all starts now.”

Further information:
  • Read more about the case here

Is The EU an LGBTIQ Freedom Zone?Β 

The ambition is right, but the reality is very different, says leading European LGBTI rights organisation

In response to the proliferation of over 100 so-called β€˜LGBT-Free zones’ in Polish municipalities, the European Parliament today is debating a resolution declaring the EU an LGBTIQ Freedom Zone. It’s a strong symbolic gesture, but clear action needs to follow to make this a lived reality, according to ILGA-Europe.

The European Parliament (EP) in this weeks plenary session will debate and adopt a Resolution declaring the European Union (EU) an LGBTIQ Freedom Zone. Europe’s leading LGBTI organisation, ILGA-Europe, say much work needs to be done to align the resolution with the truth of LGBTI people’s lives in Europe.

According to Katrin Hugendubel, Advocacy Director with ILGA-Europe: β€œIt is great to see the European Parliament wants the EU to be an β€˜LGBTIQ Freedom Zone’, in other words a space where LGBTIQ persons can be who they are and love whom they love, free and safe. At ILGA-Europe, our day-to-day work reminds us very clearly that a lot still needs to be done to makes this a reality across the EU. We need to see more concrete action, from the European Commission, the European Parliament, the European Council, as well as national governments and policy-makers, and from regional and local authorities.”

Last month, ILGA-Europe published its β€˜Annual Review of the Human Rights Situation of LGBTI People in Europe and Central Asia 2021’, clearly setting out how far the reality of LGBTI people across the EU is from living in a β€˜freedom zone’.

Beyond the stories about Poland and Hungary, which have made most of the anti-LGBTIQ headlines in recently, there are so many ways in which the EU and its member states are falling short of ensuring LGBTI are free and equal in the EU, including:

  • Member states such as Portugal and Italy have yet to legislate to protect LGBTI people against discrimination outside the labour market.
  • The CJEU judgement in the Coman case, which three years ago established that same-sex spouses are fully recognised as spouses under the EU freedom of movement directive, has to this day not been enacted by the Romanian state, and the partner of Adrian Coman still has not been granted a residence permit in Romania, leaving other same-sex couples in similar situations in limbo.
  • Children of a same-sex couple can lose one parent just by crossing an EU border, while the recent case of a child born to a same-sex couple not being recognised by the Bulgarian authorities, currently leaves that child stateless.
  • Two years after the introduction of the first LGBT-free Zones and Family Rights declarations in Poland, the EC still has not brought infringement procedures against the Polish government, even though such declarations clearly infringe on the principle of non-discrimination set out, for example, in the EU employment directive.
  • Only Malta, Portugal and some regions in Spain have banned non-medically necessary surgeries on intersex children.
  • The Czech Republic, Finland, Latvia, Romania and Slovakia still require trans people to be sterilised before having access to legal gender recognition, while Hungary last year abolished any procedure to have legal gender recognition for trans people recognised.

Hugendubel added: β€œTo ensure the EU will become a true LGBTIQ freedom zone, the Commission has to make full use of all tools in its box. It should ensure full implementation of all relevant EU directives and CJEU judgements in every member state. It should ensure that all member states spend EU funding in full respect of the principle of non-discrimination and respect for fundamental rights. It has to hold EU governments accountable to the principles set out in the EU treaties and the Charter for Fundamental Rights.”

According to Evelyne Paradis, Executive Director of ILGA-Europe: β€œIt is great to see clear commitments to LGBTIQ equality from the European Parliament through this resolution, as well from the European Commission through the β€˜EU LGBTIQ Equality Strategy’. Now that the EU is an LGBTIQ Freedom Zone, we need to see all actors using the full range of tools at their disposal to ensure that respect of LGBTIQ rights is guaranteed. Otherwise there is a big risk of losing credibility.”


For further comment, contact:Β Ana MuΓ±oz PadrΓ³s, ILGA-Europe:Β ana@ilga-europe.org, +32 493 35 60 55

Finland violated rights of a lesbian mothers’ child by rejecting his asylum application, UN finds

The UN Committee on the Rights of the Child found that Finland failed to consider the best interests of the child of a lesbian couple when assessing his asylum request. Now the country is under an obligation to provide reparation.

The UN Committee on the Rights of the Child found that Finland failed to consider the best interests of the child of a lesbian couple when rejecting his asylum request, and to protect him against a real risk of irreparable harm when the family had no other choice but to return to Russia.

β€œThis is a ground-breaking decision: it is the first asylum-related case from the UN system involving a child who is facing specific risks on the grounds of his mother’s sexual orientation, and of the family they form together”, said Kseniya Kirichenko, Programme Coordinator at ILGA World. β€œThis is also the first time that the UN Committee on the Rights of the Child made a decision on sexual orientation issues, and the first case on children in same-sex families in Treaty Bodies’ practice altogether”.

The Committee’s decision was informed by a third-party intervention submitted jointly by ILGA World, ILGA-Europe, the International Commission of Jurists (ICJ), Child Rights International Network (CRIN) and Network of European LGBTIQ* Families Associations (NELFA).

The Committee’s decision concerned an application filed on behalf of A. B., now 11, who had fled Russia together with his mothers after the family faced harassment and threats, and he had started to suffer from bullying and isolation at school.  These were the years when regions across Russia had started to introduce so-called β€œanti-propaganda laws”, which have contributed to an increasingly hostile environment against people of diverse sexual orientations, gender identities and expressions. Legislation that bars β€œpromoting non-traditional sexual relationships” was eventually adopted in 2013 at the national level.

Fearing for their safety, the family fled to Finland, where the child started to attend school, made friends, and no longer had to live in fear of calling both of his parents β€œmother” and of talking to anyone about his family.  However, Finland rejected their application for asylum: authorities recognised the past experiences of threats, bullying and discrimination; nonetheless, they concluded that these could not be considered as amounting to persecution.

The family was left with no other choice but to return to Russia. However, the complaint against Finland reached the United Nations, where in February 2021 the Committee on the Rights of the Child concluded that Finland β€œfailed to adequately take the best interests of the child as a primary consideration when assessing the author’s asylum request based on his mothers’ sexual orientation, and to protect him against a real risk of irreparable harm in case of return to the Russian Federation”.

β€œThis isΒ an important decision, setting out necessary standards for the protection of children in LGBTI familiesΒ who are at heightened risk of discrimination, especially in countries like Russia, where LGBTI people face stigmatisation and hostilities in their everyday lives”, said Arpi Avetisyan, Head ofΒ Litigation at ILGA–Europe.Β β€œStates must always ensure that the best interests of the child are effectively and systematically taken into account in the context of asylum proceedings, and that they are not discriminated based on their parents’ sexual orientation.”  Β Β 

While finding Finland in violation of articles 3, 19, and 22 of the Convention on the Rights of the Child, the UN committee pointed out that the state β€œis under an obligation to provide an effective reparation to the author, including adequate compensation.”

The decision has the potential to bring about change. β€œIn the past, we have seen that international decisions on lesbian, gay and bisexual asylum seekers actually led to giving the applicants residency in the respondent States”, concluded Kirichenko. β€œWe hope that Finland will also ensure that this family will be able to come back and to finally have a happy and safe life”.

Notes for editors:

UN Treaty Bodies (Committees):  committees of independent experts appointed to review the implementation by State parties of an international human rights treaty.

Committee on the Rights of the Child:  part of the UN Treaty Bodies, it is a United Nations body of 18 Independent experts that monitors the implementation of the Convention on the Rights of the Child by its State parties.

More information about Treaty Bodies is available in ILGA World’s annual Treaty Bodies reports and strategic litigation toolkit. Recordings of ILGA World’s webinars on United Nations advocacy, including on Treaty Bodies, are available here.


Additional resources:

Press releases on the case

Media contacts:

LGBTI activists create a Twitter storm for EU infringement procedures against Poland over so called β€˜LGBT-free Zones’

ILGA-EuropeΒ launchedΒ an-hour long Twitter Storm demonstration on February 11, calling on the European Commission to take infringement procedures against Poland, making the Polish-based hashtag #infringementNOW trend

An online action, created by Brussels-based ILGA-Europe in association with the Polish LGBTI rights organisation Campaign Against Homophobia (KPH), has beenΒ supportedΒ by many politicians, MEPs, diplomats, political party groups, NGOs and human rights defenders from all around the EU and the world.

Other words like #Polish and #Poland were also among the trending topics between 9 and 10 AM in Belgium, which coincided with the European Parliament’s plenary sessions. The hashtag #infringementNOW had more than 2,000 mentions in an hour-long Twitter demonstration.

The action was created to support to a 30-day long campaign by KPH, which has been calling on the EU to initiate an infringement procedure against Poland for violating EU directives with so-called β€˜Family Charters’ and β€˜LGBT Free Zones’, which over 100 Polish local governments have adopted over the last two years.

https://cdn.embedly.com/widgets/media.html?type=text%2Fhtml&key=a19fcc184b9711e1b4764040d3dc5c07&schema=twitter&url=https%3A//twitter.com/ILGAEurope/status/1359777741055393792&image=

Last September, ILGA-Europe, together with KPH and Poland’s Fundacja RΓ³wnoΕ›ci (The Equality Foundation), submitted a legal complaint to the European Commission about so-called β€˜Family Charters’ and β€˜LGBT Free Zones’. The complaint sets out how these declarations introduce discrimination against LGBTI people and thus breach the European Council Directive (2000/78/EC), establishing a general framework for equal treatment in employment and occupation, as well as the Charter of Fundamental Rights Article 15 on Freedom to choose an occupation and right to engage in work, and Article 21 on non-discrimination.

The campaign is not over!

Until the European Commission takes infringement procedures against Poland, let’s keep calling on it to take action. Tweet this message, and ask your followers and other stakeholders to tweet it also:

Time 4 #infringementnow against Poland 4 violating fundamental rights of EU citizens & disregarding EU treaties with so-called β€˜LGBT-Free Zones’ & β€˜Family Charters’. EC President @vonderleyen, what’s holding the @EU_Commission back from taking action? @helenadalli @VeraJourova

You can find an image to include with your tweet here.

For inspiration, take a look at what happened during our Twitter-storm demonstration:

Many activists tweeted #infringementnow!

Human Rights organisations also joined the call

Members of the European Parliament called the European Commission to take action.

The shocking state of LGBTI children’s rights in Europe

We expect all children to be protected from violence and discrimination, and to have access to appropriate legal protection, but in the EU the truth is far from this case, and LGBTI children are particularly vulnerable. Here’s why.

Children should be protected from all forms of physical or mental violence, according to the UN Convention on the Rights of the Child, the EU Charter of Fundamental Rights and the European Convention on Human Rights. However, LGBTI children and young people still face widespread discrimination and exclusion all across Europe. The COVID-19 crisis is making them more vulnerable to abuse and marginalisation.

LGBTI children, children perceived as queer, and those coming from rainbow families experience discrimination and violence at school for their gender and sexuality or that of their parents. Almost 6 in 10 students will hide that they are LGBTI, as observed in the latest Fundamental Rights Agency (FRA) survey on LGBTI people in Europe.

Sometimes, discrimination starts at home, where rejection from their families can lead to mental health problems, and often homelessness, as we have seen exacerbated by the COVID-19 crisis.

Trans young people are frequently denied legal recognition and access to transition-related healthcare, or face abusive requirements, while intersex children go through unnecessary and unconsented medical interventions, which can have life-long negative consequences, and are exposed to very high levels of stigma, which can lead to family violence, gaps in education, and homelessness.

Children in rainbow families are vulnerable

When LGBTI parents cannot get married or register their partnership, or when they cannot become parents legally, their children are left in precarious positions. If, for instance, the recognised parent dies, the child is left legally orphaned, and has no right to the care of their other unrecognised parent. This lack of legal recognition of parenthood deprives the child and their parents of various rights such as inheritance rights, the right to parental leave, visitation rights, pension rights, and the right to alimony, and can result in some children being left undocumented and at risk of statelessness.

Same-sex parents and trans parents aren’t recognised

In 12 EU countries, same-sex parents are unable to get married, and in six EU countries same-sex relationships cannot be recognised at all (Bulgaria, Latvia, Lithuania, Poland, Romania and Slovakia). Registered partnerships allow parental rights in some countries but not in others.

Recognition of trans parents is especially complicated. In many cases, there are not clear regulations and individual family situations are decided on a case-by-case basis. In just four EU countries, the recognition of trans men as fathers and trans women as mothers is fully accessible, while non-binary parenthood recognition is even more uncommon. Trans parents who cannot access legal gender recognition also cannot be recognised in their gender in relation to their children. Although legal gender recognition can be accessed in 41 countries in Europe, 20 of them require divorce before accessing it. 10 of these countries are in the EU.

In the remaining countries, parents who have their gender legally recognised may still not be able to be recognised as a parent in their gender, both when changing their legal gender before or after the registration of their child.

Trans children are left unprotected

The lack of inclusion of minors in legal gender recognition (LGR) processes or the creation of processes with additional requirements only applicable to minors (such as parental consent or judicial oversight) constitute discrimination on the basis of age and further marginalises trans children and adolescents. They are left unprotected and have a higher chance of facing discrimination in all areas of their lives.

Trans children also face additional barriers and discrimination when trying to access healthcare, particularly trans-specific healthcare, that may include counselling, hormone blockers and/or hormone replacement therapy. The FRA LGBTI survey shows that 17% of trans respondents aged 15 to 17 in the EU avoided healthcare services, while 15% have been the subject of inappropriate curiosity or comments from healthcare professionals. Discrimination in healthcare has devastating consequences on the physical and mental health of trans children, yet they and their parents often encounter prejudice, lack of information and appropriate care in general health services.

Intersex children are regularly mutilated and attacked

Intersex children are subjected to invasive medicalisation without informed consent. According to the FRA LGBTI survey, 62% of intersex respondents and their parents were not able to provide informed consent to a surgical intervention, while 49% did not provide consent for hormonal treatment. However, non-vital, non-emergency surgeries are regularly performed on intersex infants and children, and hormonal treatment is given in childhood, both of which often have devastating effects into adulthood.

At school, intersex children are subjected to physical and sexual attacks, hate-speech and bullying. The FRA survey shows that 14% of intersex children between 15 and 17 years old have experienced a physical attack in the 12 months prior to the survey and 39% of these attacks happened at school. 56% reported severe psychological problems as a result and 9% were hospitalised, making intersex children, together with trans children, the most vulnerable.

All children have the right to protection and care

Article 24 of the EU Charter of Fundamental Rights states that β€œchildren shall have the right to such protection and care as is necessary for their well-being”. It also states that actions relating to them should be taken in the child’s best interest and that every child has the right to be in regular contact with their parents, unless it is contrary to the child’s interest. As with every child, LGBTI children should be able to enjoy these inalienable rights, and deserve to grow up in a world that values and cherishes them and their families equally.

European Court must rule in favour of a child at risk of statelessness and her family’s freedom of movement in the EU, say leading LGBTI rights organisations

Authorities in Bulgaria have not recognised the valid EU birth certificate of the child of a same-sex couple. On February 9, the Court of Justice of the European Union must clarify that if you are a parent in one EU country, you are a parent in every EU country.

On Tuesday, February 9, the Court of Justice of the European Union (CJEU) will hear the case of a same-sex couple who were refused a birth certificate in Bulgaria for their newborn daughter. The authorities claimed that a same-sex couple cannot be registered as parents on the birth certificate. ILGA-Europe have been supporting Bulgarian LGBTI rights organisation,Β DeytsvieΒ in bringing the case forward and is, through their campaign #parentswithoutborders, raising awareness of the lack of protection of same-sex parents and their children within the EU.

Bulgarian born Kalina Ivanova* and Gibraltar-born Jane Jones* are the mothers of Sara, who was born in Spain in 2019. Under current Spanish law, the child could not acquire Spanish citizenship because neither Kalina or Jane is a Spanish citizen. The child was also denied British citizenship because Jane was born in Gibraltar of British descent, and under the British Nationality Act (1981), cannot transfer citizenship to her daughter.

Therefore, Kalina requested Bulgarian citizenship for their daughter. Bulgarian authorities rejected the application, arguing that a baby cannot have two mothers, and refused to issue a birth certificate in which the parents are two persons of the same sex.  

Sara has been deprived of Bulgarian, and therefore European citizenship, and is at risk of statelessness. At the moment, the child has no personal documents and cannot leave Spain, the country of the family’s habitual residence. The lack of documents will restrict Sara’s access to education, healthcare, and social security.

According to the case taken to the CJEU, the Bulgarian authorities are violating the rights of a European citizen on the grounds of sexual orientation, namely to free movement, and to private and family life. This constitutes a breach of the fundamental principles of the EU.

In Bulgaria, same-sex marriages and same-sex registered partnerships are not recognised.

According to Denitsa Lyubenova, attorney-at-law and co-founder of Deytsvie: β€œCountries in Central and Eastern Europe are derogating from basic human rights guaranteed by the European Convention on Human Rights and the Charter of the Fundamental Rights of the EU. This weakens the EU position as a guardian of human rights. With this case we have the chance to realign the practice in EU countries with the principles set out in the EU Treaties and to protect the rights of LGBTI families and their children moving across Europe. and the Court needs to reconfirm that Rainbow families are as valid as all others.”

Arpi Avestisyan, Head of Litigations at ILGA-Europe added: β€œIn her State of the Union 2020 address, President Ursula von der Leyen said: β€˜If you are parent in one country, you are parent in every country’. However, thousands of same-sex parented families in the EU currently live at risk of not having the parental relations recognised and face legal turmoil due to differences in member states’ national systems.”

Avestisyan continued: β€œParents cease to exist when moving from one EU member state to another, where birth certificates from another member state are not recognised. These situations create severe obstacles for children in exercising the rights to which they are entitled under European and international law.

β€œThrough this case, the CJEU has the opportunity to clarify that parentage established in one member state must be recognised across the EU, and all EU citizens and their families equally enjoy freedom of movement. As already confirmed in RomanianΒ Coman case, arguments on β€œconstitutional identity”, namely that Bulgaria does not recognise rainbow families, cannot justify a violation of EU law.” 

*Names have been changed.

β€œIf You Are Parent in One Country, You Are Parent in Every Country”:Β But still today a child can be stateless in the EU just because it has two mothers

A baby born to two mothers, one from Gibraltar and one from Bulgaria, has become a test case at the European Court of Justice for the freedom of movement of rainbow families in the EU. Read on and find out how to join our campaign for parents without borders!

Born in the EU, Sara is the daughter of a Gibraltar-born mother and a Bulgarian mother. Under EU rules, baby Sara is a Bulgarian citizen. However, Bulgarian authorities do not believe that a child can have two mothers and have denied citizenship to Sara, putting her at risk of statelessness. The Court of Justice of the European Union in Luxembourg will hear Baby Sara’s case on February 9. It is a unique opportunity for the court to take a stand in support of rainbow families and their right to free movement.

β€œIf you are parent in one country, you are parent in every country” said Ursula von der Leyen, President of the European Commission, in her address of the State of the Union in September 2020. However, this is not the reality for many rainbow families, and it has certainly not been the case for baby Sara and her parents so far. Through this case, the Court of Justice of the European Union (CJEU) has the chance to help make President von der Leyen’s words a reality for all families in the EU.

The story of Baby Sara’s family

Kalina* and Jane* got married in 2018 in Gibraltar, Jane’s birthplace. Kalina is from Bulgaria, a member state of the EU. Because it is part of the United Kingdom, since January 1 of this year, Gibraltar has exited the EU.

Baby Sara was born in December 2019 in Spain. Like Bulgaria, Spain is a member state of the EU. Sara’s birth certificate lists Kalina and Jane as her mothers. However, under the national laws of Spain and the UK, Sara could not become a citizen in either country. Not in Spain, because neither of her mothers have Spanish citizenship, and not in the UK, as Jane, who was born of British parentage in Gibraltar, could not transfer British citizenship to Baby Sara, who was born outside the UK.

Therefore, Kalina requested Bulgarian citizenship for their child. Bulgarian authorities rejected the application, arguing that a baby cannot have two mothers, and refused to issue a birth certificate in which the parents are two persons of the same sex. In Bulgaria, same-sex marriages are not allowed. As a result, Sara has no personal identification documents and cannot leave Spain, where the family currently lives.

In the long run, Sara is at risk of statelessness. Without documents, she will not be able to attend school. Kalina lodged a claim against Bulgarian authorities before the Administrative Court of Sofia, which in turn referred four questions to the CJEU asking for clarification. The CJEU will hold a hearing in this case on February 9 by the Grand Chamber, composed of 15 judges.

Meet Sara’s mothers, their attorney and Deystvie.

Why the court should judge in Baby Sara’s favour

β€œAll EU citizens and their families have the right to enjoy freedom of movement,” says Arpi Avetisyan, Head of litigations at ILGA-Europe. β€œArticle 21 of the Treaty on the Functioning of the European Union states that all EU citizens and their family members have the right to move and reside freely within the EU. Through this case, the CJEU has the opportunity to clarify that parentage established in one member state must be recognised across the EU.

β€œIn 2018, the CJEU delivered a judgement on theΒ Coman case, saying that the definition of β€˜spouse’ in EU law on freedom of movement includes same-sex couples. Therefore, β€œarguments on β€˜constitutional identity’, namely that Bulgaria does not recognise rainbow families, cannot justify a violation of EU law.”

Attorney Denitsa Lyubenova from Bulgaria talks about the case in ILGA-Europe’s podcast,Β The Frontline.

Severe obstacles for children

Unfortunately, Sara’s situation is not an isolated case. According to Arpi, it is representative of what many rainbow families experience across the EU. β€œParents cease to exist when moving from one EU country to another, where birth certificates from another member state are not recognised. These situations create severe obstacles for children in exercising the rights to which they are entitled under European and international law. Among others, the Convention on the Rights of the Child (CRC) is violated, restricting access to education, healthcare, and social security.”

The CJEU must clarify that if you are a parent in one EU country, you are a parent in every EU country. Help make this a reality by joining our #parentswithoutborders campaign!

Share this gif on your social media, with the message:

Authorities in #Bulgaria are not recognising the valid #EU birth cert of the child of a same sex couple. On Feb 9 the CJEU must clarify that if you are a parent in one EU country, you are a parent in every EU country #ParentsWithoutBorders

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Authorities in #Bulgaria are not recognising the valid #EU birth cert of the child of a same sex…

#ParentsWithoutBorders

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*Names have been changed

Joint statement: Dark day for LGBTI community in Hungary as homophobic discriminatory bill and constitutional amendments are passed

Reacting to the Hungarian parliament’s decision to adopt a law that will strip non-married couples of the right to adoption and two constitutional amendments which further restrict the rights of LGBTQ people, leading human rights organisations have come together to condemn the decision.

David Vig, Director of Amnesty Hungary, said: β€œThis is a dark day for Hungary’s LGBTQ community and a dark day for human rights. These discriminatory, homophobic and transphobic new laws – rushed through under the cover of the coronavirus pandemic – are just the latest attack on LGBTQ people by Hungarian authorities.”

Katrin Hugendubel the Advocacy Director at ILGA-Europe said: β€œThese bills further restrict the rights of LGBTI children and parents in Hungary. LGBTI children will be forced to grow up in an environment which restricts them from being able to express their identities, and children across Hungary will be refused safe and loving families, as adoption is restricted only to married heterosexual couples. This attempt to rush through these discriminatory, homophobic and transphobic new laws are part of an ongoing attack on LGBTI people by Hungarian authorities.”

Masen Davis, Executive Director at Transgender Europe said: β€œEarlier this year, Hungary made it impossible for trans people to change their names and legal gender marker. We are deeply concerned for the health and safety of trans children and adults in Hungary in such a hostile climate. We call upon EU Commission President von der Leyen to address the rights of LGBT parents, the attempt to erase gender diverse children, and the ban on legal gender recognition in the Commission’s rule of law assessment and on-going Article 7 TEU proceedings against Hungary.” 


Background:

The Hungarian Parliament passed a bill prohibiting adoption for non-married couples and amend the Constitution stating that β€œmother is a female and father is a male” and that Hungary β€œprotects self-identity of the children’s sex by birth” which would further stigmatize the transgender and intersex people in Hungary.

A.H. and Others v Germany

Recognition of trans parenthood.

Submitted jointly by ILGA-Europe, TGEU, and Bundesverband Trans*.

Find here the communicated case.

The Court made its decision on 4 April 2023, which found that it is within the State’s discretion to list a trans parent on their child’s birth certificate using a β€œdeadname” and sex assigned at birth.

Buhuceanu and Ciobotaru v. Romania

Recognition of same-sex unions.

Submitted jointly by ILGA-Europe, FIDH, NELFA and ECSOL. 

Find here the communicated case.

The Frontline: Bulgaria and the Spread of European Anti-LGBTI Populism

β€œAttitudes towards LGBTI people are changing and changing fast,” says activist, Lilly Dragoeva from the Sofia-based Billitis Foundation, in this episode of The Frontline, which delves into the current situation in Bulgaria, a country we don’t often hear about as Poland and Hungary’s governmental persecution of LGBTI people grabs the headlines. There may not be LGBT-free zones in Bulgaria, but it’s a country with almost no protections for LGBTI people, a growing, so-called β€˜anti-gender’ movement, a successful spreading of demonising fake news stories, and an alarming advance in societal rejection of LGBTI people.

Along with Lilly, we speak with activist Simeon Vasilev from GLAS Foundation about a growth in official anti-LGBTI hate speech and the role the EU can play, and with Dimithar Dimitrov from the Bulgarian city of Plovidiv, where in September there were organised attacks on young people who are perceived as LGBTI.

Some hope for Bulgarian LGBTI people comes in the form of strategic litigation for the recognition of a rainbow family, and we speak to attorney Denitsa Lyubenova, from the LGBTI youth organisation, Deystvie, about the current state of play with the case.

Rounding the episode up, ILGA-Europe’s Programmes Director, Bjorn Van Roozendaal talks to us about the wider picture in Europe, the reasons behind the growth we’re seeing in anti-LGBTI politics and movements, and the way the LGBTI movement can strategise to counteract this.

Listen below or click here to listen and subscribe to The Frontline on your favourite podcast platform.

Letter to Finnish Prime Minister Sanna Marin: in regards to the new parental law in Finland

Together with NELFA we call on the Finnish government to address the needs of rainbow families in the new Finnish Parental Law. This is an opportunity for Finland to become a European leader in the recognition of the rights of all families.

Dear Prime Minister Marin, 

We are writing to you on behalf of ILGA-Europe (the European region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association) and NELFA (the Network of European LGBTIQ* Families Associations). 

We are pleased to see that your government has decided to put forward a new Parental Law, which has the potential of allowing for full recognition of Rainbow Families. With this letter we want to encourage you now not to stick to the minimum necessary to avoid discrimination of same-sex couples and their children, but to use this occasion to be the first country in Europe to put in place a Parental Law that truly treats all families equally.

The Finnish government has been one of the leading countries in Europe in setting high standards for equality and non-discrimination in recent years, for example in adopting non-discrimination and equality legislation which protects LGBTI people from discrimination in all areas of life (including comprehensive protection on the grounds of sexual orientation, gender identity, gender expression and sex characteristics since 2015), and in requiring that the national curricula include information on the diversity of gender and sexual orientations. The current legislative proposal and process of the Parental Law is another chance to become a leader on the full recognition of families in all their manifold compositions in our society. 

Currently, the instructions given for the draft law encompass only one benefit for rainbow families: the law would enable the use of sperm in a female couple’s fertility treatment, also in cases in which the donor can be confirmed as the father of the child. As important as this recognition is, the government should not miss the chance to fully protect families in all their realities, but use this unique opportunity to ensure: 

  1. that the child’s has access to the full extent of rights related to legal parenthood, such as the right to alimony, right to inheritance and the unquestionable right of access to all de facto parents. 
  2. that trans and non-binary people are fully recognised by the law also when becoming parents and introduce a non-gendered parental registration.

Ignoring the needs of children in rainbow families in the Parental Act is not in line with the spirit and records of the government program. The government programΒ states thatΒ β€œIn Finland, about a third of all families are no longer traditional nuclear families: for example, the number of recomposed families and rainbow families has increased. Current policies and forms of support do not meet the real needs of all families.”

Across Europe multi-parenting is a reality: same-sex couples forming bonds with a third person or another couple to create a family and to become joint parents – with equally divided parental responsibilities and rights. These models have been well-known for a long time – and not exclusively with LGBTIQ* people. However, today in Finland, as in all European countries, the law still only recognises two parents and thus does not provide a framework to ensure the full protection of the child in multi-parenting models.  In existing two-parent models, primary caregivers are not recognised and therefore are not legally able to carry out basic parental responsibilities, such as having the right to meet the child, and the child does not have the right to alimony or inheritance from the primary caregiver. Clear and possibly notarised agreements in multi-parenting families would be helpful to define the parents’ roles and duties from the beginning and to avoid additional burdens in possible complex family connections (for example custody disputes). 

As stated above, multi-parenting models do not exist in the European legal framework, and since Finland already recognises multi-parenting to some extent regarding guardianship, visiting rights for de facto parents and open adoption, it is in the unique position to make history by becoming the first European country to create a multi-parenting model which fully recognises families in all their diversities. 

However, good practice examples exist. Canada (British Columbia [2013], Ontario [2017]) and the state of California in the US [2013] have successfully introduced multi-parenting models back in 2013 and 2017, and thus have already years of successful implementation to learn from. Some European countries, such as Denmark, Sweden, Germany, or France, have started to discuss multi-parenting legislations. In the Netherlands, the Staatscommissie Herijking Oudershap had issued a promising legal proposal in 2016, but the law is still being discussed and not yet adopted.  

A Parental Law that meets the latest international human rights standards, should also ensure that people are not gendered when registering as parents. Still too often trans parents are misgendered in the birth certificates of their children. This is not a minor inconvenience, but a denial of the person’s gender identity; it leads to a breach in privacy of the person concerned, leading to manifold problems in their life and the life of the child, exposing both to discrimination. 

Replacing the terms β€œmother” and β€œfather” with β€œparent” in legal documents would neither confuse the bureaucratic systems nor discourage people from using whatever terms they choose to refer to themselves in their day-to-day lives (such as β€œmother” or β€œfather”, β€œmum” or β€œdad”, or their parents’ first names etc.). Once again, these essential adjustments have not been introduced in family laws in Europe, but there is raised awareness and slowly governments are starting to assess their ways of parental registration and the discrimination these systems pose to trans and non-binary people. First steps have been made for example in France and Germany, when it comes to registration forms in schools. In this regard we welcome the current drafting of the Finnish law on Parental Leave, which is using non-gendered language. We urge you to ensure coherence between the law on Parental Leave and the Parental Law as regards non-gendered language, so as to complete the process of a fully non-gendered Finnish family legislation.

However, we have now been made aware that both these important advancements have been excluded from the reform by the Finnish Minister for Justice, Minister Anna-Maja Henriksson, as stated in her written answer to the Members of Parliament. This has come as a great disappointment to Finnish LGBTI organisations. We have been strongly encouraged by first exchanges with the new government and strongly believe that your new progressive government coalition has the potential to make a real difference in respect of the best interests of all children, including those not living in traditional nuclear families. Already Finland has shown itself to be a European leader in LGBTI rights, with the recent achievements of marriage equality, joint adoption rights and co-parent recognition for lesbian couples. It is disappointing and surprising that the Ministry of Justice decided to reject the request of Finnish LGBTI rights organisations to make the new Parental Act fully inclusive of rainbow families. 

That is why we would like to encourage you to reconsider the initial idea of creating a law for every family, of meeting their real needs. The non-existence of adequate legislative measures in other European countries should not be a reason for a non-regulation in Finland. We request that the government look into the plans being drafted by the Ministry of Justice, and ensures that sufficient resources are given to the drafting of the new Parental Act, to ensure that it adequately addresses the needs of rainbow families. We also request that that Ministry of Justice consult LGBTI civil society in the drafting of the law, in particular Sateenkaariperheet – RegnbΓ₯gsfamiljer ry, to ensure the best possible law for the protection of children in rainbow families. This is a unique opportunity for Finland to show that it is truly leading the way in Europe for the creation of a society that is inclusive of all forms of family. We believe in the modern spirit of your government and its trendsetting decision-making for the full rainbow of families.

Yours sincerely,

Katrin Hugendubel, Advocacy Director at ILGA-Europe

Eleni Maravelia, President at NELFA

Voices of ILGA-Europe: Daniel Martinovic and the battle for rainbow family rights in Croatia

The surprising success of a Croatian picture book for children last year showed that there may be more allies of rainbow families in the country than headlines about burnt effigies and unsuccessful foster care applications might suggest. In the latest Voices of ILGA-Europe video, we meet an activist and father on the frontlines for same-sex family rights in his native country.

In January, a Croatian gay couple who had applied to foster a child were refused for a second time by the Social Welfare Centre in Zagreb, despite a ruling last year by the Administrative Court, giving them the right to foster. β€œWe are a country full of hypocrisy,” Ivo Ε egota and Mladen KoΕΎi? told Croatian TV news at the time. However, in early February the Constitutional Court issued a separate ruling in favour of same-sex couples fostering. Constitutional decisions must be enforced, and the government is obliged to ensure compliance, so Ivo and Mladen should not be refused by the Social Welfare Centre again.

One of the activists working to secure rights for same-sex couples who already have children, or who wish to form families with children, is Daniel Martinovic of Rainbow Families Croatia (Dugine Obitelji). Daniel spoke to us for the Voices of ILGA-Europe video project at our conference in Prague last October.

β€œRainbow Families Croatia work together with LGBTI people with children, and those who want to become parents, and their families,” he explains.

β€œWe do advocacy work to further push for legislation that will be more open and inclusive for family rights of LGBTI people in Croatia, to have access to adoption, to foster care, medically assisted insemination open to everybody, not just heterosexual couples.”

Daniel began working as an LGBTI activist nine years ago, volunteering for the Pride organisation in Zagreb.

β€œMost of my LGBTI friends were also in some kind of NGOs and I was tired of sitting at home and looking at the situation getting worse,” he says. β€œI was active in the passing of the civil union law in Croatia in 2014, and right about then a lesbian couple friends of mine wanted to have a child, so I am a donor to them. In doing so we connected with other families, and one of the families started the whole organisation, because we wanted to connect with other rainbow families in Croatia.”

β€œCurrently in Croatia currently, single people can adopt, single people can access foster care, and single women can access medically assisted insemination, but if you’re in a civil union with a person of the same sex, you cannot do so, and that’s clear discrimination.

β€œAnd the fact is that our politicians don’t want to make a change because the level of acceptance of LGBTI people in Croatia is still quite low.”

In February an effigy of a kissing gay couple and their child was burnt at a carnival in the Croatian town of Imotski, an action that was condemned by President Zoran Milanovic, government ministers, the Ombudsperson, and LGBTI rights groups including Rainbow Families, which announced that it would file a complaint for β€œpublic incitement to hatred and violence” for the β€œhorrifying” act.

Yet, for all the horror of such a hateful act, it seems the picture of support for rainbow families in the country might be a little different. Last year Rainbow Families Croatia published a picture book for children, which turned out to be an unprecedented and surprising success. (You can read the English version of the book, β€˜My Rainbow Family’ here.)

β€œWe thought it would be only for us, a couple of families in the organisation,” Daniel explains. β€œIn the end it went to over a 2,000 people in 25 countries. It has really shown us that there are many allies in heterosexual families that want to talk to their children about LGBTI issues.”

The work that ILGA-Europe does with member organisations such as Rainbow Families Croatia is important to Daniel.Β β€œThe workshops that ILGA-Europe organises throughout the year gives you an opportunity you wouldn’t have,Β you would be like a small island in your own country. It’s really helped us to become even more visible in a bigger European context, it gives us an easier way to talk to MEP’s in the European Parliament, because it teaches you some skills. It really helps you grow as an organisation, it helps you grow as an individual, so I think it’s really important.”

If the New Finnish Prime Minister, Sanna Marin’s Childhood is Anything To Go By, She’s Going to be an Able Match for the Far-Right

Raised in a rainbow family, 34-year-old Sanna Marin will lead a five-party coalition headed entirely by women in Finland. Her experience growing up with same-sex parents will shape her tenure as Finland’s youngest Prime Minister ever.

This week, Sanna Marin became the third female Prime Minister of Finland and the youngest head of government in the world at the moment. The rest of the Finnish coalition is entirely female led, formed by Li Anderson, Maria Ohisalo, Katri Kulmuni and Anna-Maja Henriksson. Only Henriksson, Minister of Justice, is over 35.

Marin has made global headlines for being currently the youngest Prime Minister in the world, for being the child of lesbian parents, for being part of an all-female coalition, but the truth is that the party she leads, the Social Democrats, are not so beloved in Finland. In fact, the country’s most popular politician is 48 year-old Jussi Halla-aho, the leader of the populist Finns party, which has almost twice as much support as the Social Democrats.

Marin’s rise to the top of the political ladder points to a war about to be waged between the new and the old, a generation defined by the uncompromising, anti-establishment passion of climate-crisis activist Greta Thunberg and one defined by the uncompromising passion of the patriarchal establishment, as defined by populist leaders from Putin to Trump, Bolsonaro to OrbΓ‘n.

With Marin as Finland’s Prime Minister, that battle between is well and truly on and the world will be watching to see which style of politics comes out on top. Climate change, equality and social welfare are Marin’s top priorities. β€œFinland will not be finished in four years but it can get better,” she said recently on social media. β€œThat’s what we’re working on. I want to build a society where every child can become anything and every person can live and grow in dignity.”

A tenacious personality

Marin was sworn into office on December 10 after the resignation of the leader of the Social Democratic party and at an agitated time in Finland, marked by strikes. She is a Member of the Parliament since 2015 and previously served as the Minister of Transport and Communication.

β€œFor me, human rights and equality of people have never been questions of opinion but the basis of my moral conception,” Marin states on her website. After the separation of her parents, she was raised by her mother and her mother’s female partner.

In a 2015 interview, she said being the child of a rainbow family shaped her values as a politician. Two decades ago, diverse types of families were barely recognised in Finland and society was far less open to different sexualities. Marin acknowledged the isolation she suffered because she could not speak freely about her family.

β€œSilence was the hardest. Invisibility caused a sense of exclusion,” she said. β€œWe were not recognised as a real family or equal with others.”

However, she did not encounter other difficulties the children of same-sex parents often face, possibly because of her tenacious personality. β€œI wasn’t really bullied at all. Even when I was small I was very direct and stubborn. I wouldn’t have easily stood for anything.”

This week’s world headlines won’t have done Marin any harm in terms of recognition in her country, but all eyes will now be trained on her as she fights to keep Finland’s political landscape centre-left while much of the rest of Europe continues to elect right-wing leaders, the landslide win for Boris Johnson in the UK being the latest. A lot rests on her shoulders, but that direct and stubborn personality, formed in the social exclusion of a rainbow family, might just be what’s needed to lead a coalition that can seriously challenge the popularity of Jussi Halla-aho and the Finns party.