Venice Commission Opinion Advises Against Adopting Anti-LGBTQ Laws

On June 26, the Venice Commission published its opinion on the draft constitutional law on the Protection of Family Values and Minors. The Commission calls on the Georgian government “reconsider this legislative proposal entirely and to not proceed with its adoption” or, if it proceeds with its adoption, to remove/modify some of the articles in a way that ensures non-discrimination of LGBTI people and compliance with the European Convention on Human Rights.

The Venice Commission notes that the ruling party initiated public consultations on the draft constitutional law in accordance with Article 125 of the Parliament’s Rules of Procedure. However, concerns have been raised about the inadequate notice given for these debates. Various stakeholders participated, including members of Parliament, academics, civil society and state agencies, but representatives of sexual and gender minorities were conspicuously absent. The majority reportedly supported the draft laws on family values and the interests of minors, but no participation figures or methods for determining the “absolute majority” were provided.

The Venice Commission underlines that the explanatory note of the draft law shows no involvement of governmental or non-governmental organizations, experts or international bodies in its drafting. It includes impact assessments on the legal status of children and gender equality, claiming benefits for minors and no negative impact on gender equality, but lacks supporting evidence or analysis. The note claims that the draft law is in line with EU law and international obligations without any detailed legal analysis.

An internal impact assessment was also mentioned during the discussions between the Georgian authorities and the Commission, but it wasn’t made public. The Commission stresses the need for transparency, inclusiveness and thorough analysis in the legislative process, especially for constitutional amendments, and recommends that all segments of society, including sexual and gender minorities, be involved and that the analysis be made public.

Among the articles mentioned in the draft laws, Article 1, which deals with marriage and adoption rights, raised concerns. It restricts “marriage-like relationships” to heterosexual couples and excludes legal recognition for same-sex couples, potentially violating Articles 14 and 8 of the ECHR. The draft also reserves adoption rights to married spouses or heterosexual persons, to the exclusion of unmarried or non-heterosexual persons, which could constitute discrimination.

Article 1.3 prohibits medical sex reassignment surgery, a provision that could violate Article 8 of the ECHR, which recognizes gender identity as part of personal identity. The Venice Commission recommends that this article be deleted.

Article 1.4 requires state and local documents to indicate sex based on genetic data, effectively barring legal recognition of gender transitions. This contradicts ECtHR requirements for legal recognition of gender and could lead to discrimination. The Venice Commission suggests removing the “genetic data” requirement and establishing clear procedures for gender marker changes.

Finally, the bill includes provisions restricting the use of gender-neutral language and the promotion of content related to non-heterosexual relationships, gender identity, and incest. These restrictions raise significant human rights concerns, particularly with respect to freedom of expression and association. The Venice Commission recommends that these provisions be clarified or removed to ensure compliance with non-discrimination principles.

The Venice Commission criticizes provisions in the draft constitutional law that group incest with sexual orientation and gender identity, impose broad restrictions on the assembly and distribution of related materials, and prohibit certain information in educational contexts. The Commission emphasizes that incest, defined as sexual relations between closely related individuals and often criminalized, has nothing to do with sexual orientation and gender identity, which are protected from discrimination. The recommendation is to separate the regulation of incest from issues of sexual orientation and gender identity.

The bill’s broad restrictions on assemblies and the distribution of materials related to sexual orientation and gender identity are considered violations of the freedoms of assembly, association and expression under the European Convention on Human Rights (ECHR). The Venice Commission highlights the vague and imprecise wording of the provisions, noting that legal restrictions must be clear and foreseeable. The Commission argues that these provisions do not serve a legitimate aim, such as the protection of family values or minors, and may instead reinforce stigma and prejudice against LGBTI people, contrary to democratic principles.

In the educational context, the bill’s prohibition of information on sexual orientation, gender identity and incest is also criticized. The inclusion of incest is considered inappropriate and should be regulated separately. The Commission points to the problematic vagueness of terms such as “provide information” and “aim to popularize” and the lack of clear consequences for violations. It stresses that information on sexuality, including non-heterosexual orientations, must be provided in an objective, non-discriminatory manner appropriate to the age and development of children. Blanket bans on such information are inconsistent with the right to education and international non-discrimination standards.

In conclusion, the Venice Commission recommends deleting problematic provisions, ensuring clarity and precision in legal restrictions, and avoiding blanket bans on sex education. Information provided should be age-appropriate and non-discriminatory, in line with international human rights standards.

In particular VC recomments:

• modifying Article 1.1 of the draft Constitutional Law in a way that allows for the legal recognition of same-sex couples.
• repealing the words “genetically” in Article 1.1. of the draft.
• replacing the word “heterosexual” with the term “single” or “individual” in Article 1.2 of the
  draft Constitutional Law.
• deleting Article 1.3 of the draft Constitutional Law.
• deleting the first phrase (in compliance with genetic data) of Article 1.4. of the draft
  Constitutional Law and establishing a sufficiently detailed and precise law, providing
  quick, transparent and accessible procedures for changing the registered sex marker of
  transgender people.
• deleting Article 1.5 of the draft Constitutional Law or rephrasing it to ensure compliance
  with standards of non-discrimination.
• deleting Articles 1.6, 1.7 and 1.8 of the draft Constitutional Law, while regulating incest
  separately, under criminal law.

Also Read:

• 04/06/2024 – Parliament Speaker Presents Homophobic Legislation
• 06/03/2024 – Ruling Majority Tests Homophobia as Campaign Pillar

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