incapable for work because of illness or some other condition impairing his or her ... Right on private life, family, correspondence and protection from unlawful attacks on his ..... un-natural fornication was covered by the term of impure acts.13.
COVENTION ON THE RIGHTS OF THE CHILD IN THE PROTECTION OF RIGHTS AND FREEDOMS OF (QUEER) CHILDREN
Kristijan Grđan
Zagreb, September 9, 2005
SUMMARY In this observation I discuss some important issues regarding rights of (queer) children from the perspective of the Convention on the Rights of the Child. It seems abundant to actualize meaning of rights mentioned in the Convention, since there are new challenges facing legal society. Therefore, I discussed here primarily issue of right of the child on the protection of personal integrity for which I think it is most important one. It covers every right mentioned in the Convention, and it is interesting to see how rights from the Convention might be applied in relation to the sexual orientation and gender identity of the children or their parents or legal guardians, in this work from the perspective of personal integrity, right on protection from punishment and family relations of (queer) children. INTRODUCTION The Convention on the Rights of the Child was adopted on General Assembly of UN at November 20, 1989. In its Preamble it contains basis on which it was made. Except through declaratively expressed principles, the Convention primarily achieves its most important basis giving guaranties of equality in rights, as it is mentioned in article 2 of the Universal Declaration on Human Rights.1 The issue observed in this work is to which extent is equality applied to the (queer) children. I intentionally use brackets when I discuss about (queer) children. This is because I do not make distinction between children on any ground. The term queer itself is very broad and might represent different meanings. For the purpose of this work I covered by the term "(queer) children" those children who are homosexual, transgender and children living with non-heterosexual or transgender parents or legal guardians. I observed different issues, where as most important one I highlighted right of the child to preserve his personal integrity in which sexual orientation and gender identity are included. The basis of this observation relies on the protection from discrimination and equality in rights. Therefore, I found from the Convention at least 16 rights regarding (queer) children. Those rights are no specific rights and they differ only from the perspectives of children. Generally, it could be said that every child has its own pathway with which he or she exercise those rights, making them therefore specific. In this work I have analyzed right to personal integrity and its conservation, right on protection from punishment on the ground of sexual orientation or gender identity, and some issues of family status of the (queer) children.
1
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
GENERAL ISSUES Definition of the child "For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier." Yet in first article of the Convention it could be seen, from the definition of child, as it will be concretely mentioned later, that Convention has no power more greater than national legislation and that it has more subsidiary meaning, because laws applicable to the child could proscribe that majority could be attained earlier. This is, however, inconsistent, because in some countries majority could be attained later than eighteen years, which is not provided in the Convention. The term of "child of the full age" is not provided in the Convention, as it is in some parts of Croatian Family Law in the context of alimony of the adult person if he or she is incapable for work because of illness or some other condition impairing his or her ability to work. So, from the perspective of relations between parents and children, Croatian legislation provides better models of protection, for now. In the context of this work, it would be especially needed to observe this definition discussing about protection of sexual freedom of the child and when he might decide about it – when it is considered that child might give consent on sexual intercourse, of course, applying Convention from the perspective of Croatian legislation. Protection from discrimination Second basic, and for this work most important issue, is protection from discrimination. It would be considered in every part of this work, because it should be seen how child might be protected from the discrimination on the ground of his sexual orientation or gender identity and on the same ground of his parents. Accordingly to art. 2 of the Convention: "1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members."
Rights of the child are guaranteed regardless any status of him or his parent or legal guardian. Paragraph 2 of this article obliges member state to undertake protection measures against discrimination or punishment of the child on the mentioned grounds. Sexual orientation or gender identity of the child or those grounds of his parents or legal guardians are not directly mentioned here, but it could be interpreted from the meaning of other status of those persons. Differently from other provisions in this Convention, this does not rely on the scope of national legislation, so there is no possible exception for discrimination if it is provided under national laws. This provision, considered in broad sense it gives, and from the perspective of sexual orientation and gender identity of the child, his parents or legal guardians, hypothetically, we could say that by this provision Convention guaranteed these rights to the child: 1. All rights regardless his sexual orientation or gender identity and regardless of sexual orientation and gender identity of his parents or legal guardians 2. Protection from discrimination on the basis of sexual orientation or gender identity 3. Protection from punishment on the ground of sexual orientation or gender identity 4. Residence in family with his homosexual or transgender parent (as single parent) or in the same-sex union which is with marriage equalized in rights 5. Equal status regardless if child lives with parent who is in opposite- or same-sex union as well as the right to be adopted from the side of the same-sex partner of his parent 6. Development of the child and conservation of his personality in which his sexual orientation and gender identity as well as family relations are included 7. Right to life regardless sexual orientation or gender identity (prohibition of death penalty for homosexual intercourse) 8. Right to express opinion on his sexual orientation and gender identity 9. Right on the freedom of the expression and receiving information related to his sexual orientation and gender identity and with assurance that those information would be accurate and balanced 10. Right of association in organizations dealing with LGBT issues 11. Right on private life, family, correspondence and protection from unlawful attacks on his reputation on the basis of his sexual orientation and gender identity as well as those grounds of his parents or legal guardians
12. Right on the protection of physical and personal integrity from violence, neglecting, molestation or sexual abuse on the ground of his sexual orientation or gender identity or those grounds of his parents and legal guardians 13. Right to the highest level of health which excludes practices for which s speculated that they could change or convert sexual orientation or gender identity of the child – special sanctions for such actions against child's personality should be provided 14. Right on non-discriminatory education, without elements that put down child or other people of different sexual orientation or gender identity, and right on education which celebrates equality of those people under society 15. Right of the child to take part in the development of queer culture 16. Right to rehabilitation from any kind of molestation directed to the child on the ground of his sexual orientation or gender identity of those grounds of his parents or legal guardians. PERSONAL INTEGRITY Right to personal integrity of the child and its conservation Right on the personal integrity could be defined as the right of personality to wholeness and invulnerableness of mental processes and mental health.2 Although in civil right, the term of personal integrity could be found as the subject for which could, in the case of unlawful interference in it, regarded as un-material damage and materially compensated, its legal definition here is important so we could see how sexual orientation and gender identity of some person, as well as child, could be covered by the term of personal integrity and how it could be protected. In most common definition, Croatian legal experts say that right on personal integrity gives to its subject full control over his own mental processes and mental health, and authority to exclude extraneous unlawful operations in mental process and health. Object of the right on personal integrity would be personal existence of the individual represented by feelings, conscience and character. Sexual orientation and gender identity of the person should be in any case considered as the object of the right on personal integrity, and the issue I discuss later is mostly related to acceptability of social interference in personal integrity, which in one most dangerous aspect (except death penalty) could be achieved through different medical procedures.3 Right on sexual orientation and gender identity Some scientific data 2 3
See Juliano Dropulić, 2002. Right on private life and personal integrity, Vizura, pp. 208 See section related to right on the highest level of helath.
According to psychological definition,4 sexual orientation is one component of a person's identity, such as culture, ethnicity, gender and personality traits. Sexual orientation is an enduring emotional, romantic, sexual, or affective attraction that a person feels toward another person. One of the great issues is, when sexual orientation of the child becomes object of protection as a part of personal integrity? This answer should be found from the psychological perspective and, per se, it is not matter of law, but rather how law would deal with the fact that it becomes object of protection. In the process of child's development, it doesn't seems, however, that it would be enough to say that sexual orientation becomes object of the protection when child identifies himself as a heterosexual or homosexual. Developing phase should be also covered by legal protection – from unlawful interference while child is not sure which sexual orientation is part of his identity. Attempts to change sexual orientation should not be, therefore, prohibited only when child is, by his observation, homosexual, but also in the phase when he thinks he might be homosexual, but he is not sure. This would not represent attempts to change sexual orientation, but attempts to direct it in the heterosexual way. Directing the child's developing personality in the heterosexual way is the main issue of the heteronormity of childhoods. In the same time, while it represents big social issue, legal perspective cannot be taken apart from it. First of all, in this context, it should be noted that American Psychiatric Association, does not consider homosexuality per se as a mental disorder.5 Although, from the legal perspective, right to choose sexual orientation is recognized, even while mechanisms of particular sexual orientation development remain unclear, current literature and majority of scholars in the field state that sexual orientation is not matter of choice.6 There are different scientific fields investigating developmental mechanisms of sexual orientation right now, especially neuroscience and genetics. Most prominent theory is that sexual orientation develops as a result of combination of genetic, hormonal and environmental influences. In some instances, scientists might discuss about homosexual or heterosexual phenotype and varieties among them. There is lack of evidence that homosexual orientation is influenced by abnormal parenting, sexual abuse or other unusual life circumstances. Accordingly to the opinion of American Academy of Pediatrics and its Committee o Adolescents there are special needs for non-heterosexual and questioning youths, because if environment is of their emerging sexual orientation, they might feel profound isolation and fear from discovery, which interferes with achieving developmental tasks of adolescence related to self-esteem, identity and intimacy.7 Some statistics shows that 4
See views of American Psychological Association in the fact book on sexual orientation and youths for school personnel, http:// www.apa.org/pi/lgbc/publications/justthefacts.html 5 American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders. 3rd ed. Revised. Washingon DC, 1987 6 Rowlet J.D., Patel D., Greydanus D.E., 1992. Homosexuality. In Greydanus D.E. and Wolraich M.L., Behavioral Pediatrics, New York, NY: Springer-Verlag, pp. 37-54 7 Frankowski B.L., 2004. Sexual orientation and adolescents. Pediatrics, vol. 113, pp. 1827-1832
non-heterosexual youths are subjected to harassment and violence; 45% of gay men and 20% of lesbians surveyed were victims of verbal and physical assaults in secondary schools on the ground of their sexual orientation.8 Non-heterosexual youths are at higher risk of dropping out of school, being kicked out of their homes or turning to life on streets for the survival. Some of them might abuse tobacco, alcohol and drugs at earlier age. Non-heterosexual youths are also at the higher risk of HIV infection. Legal issues on protection of homosexual and transgender personal integrity of children Those findings open different levels which could by considered from the perspective of law. First, it should be noted that it might be very difficult for legal experts to give conclusions on the basis of scientific data. In this context I think that, regarding questioning youths, legal experts should not go into the sphere of their developmental processes, although they should know some basic and widely known facts as such that homosexuality is not mental disorder. Protection of mental health of questioning youths and homosexual adolescents should not be interfered by law if such interference is not necessary, as in cases of application of reparative therapy. Legal attitude should not, therefore, be guided by possible causations of homosexuality but rather by possible consequences that some actions against questioning and homosexual youths might undergo after their personality issues become visible to others – school peers, teachers, friends, parents, family members and others. Those children should be protected from negative consequences of interaction between them and people who might become aware of their personal status (including medical experts and psychologists) and, from my point of view, this is the legal issue. Accordingly to the art. 8 para. 1. of the Convention, State Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law, without unlawful interference. Since sexual orientation is, according to the views of psychologists, part of person's identity, then Convention here guarantees right of the child to preserve his or her sexual orientation, meaning of course, that it could be heterosexual or non-heterosexual. This could be easy answer for those who think that sexual orientation is mater of choice and that adult people have right to choose it, and ask themselves do children have the same right. Moreover, in the para. 2 of the same article it is provided that State Parties will, if some parts of identity are illegally deprived to child, undertake appropriate assistance and protection, with a view to reestablish speedily his or her identity. Actually, the Convention gives obligation to the State Parties to preserve child's sexual orientation and to protect him or her from unlawful attacks on his or her identity as well as to provide mechanisms to speedily reestablish damaged identity of that child. It could be interesting to see on which ways in heterosexual society, identity and, finally personal integrity of the child would be attacked. The Convention recognizes unlawful attacks, and if attack is lawful in any case, there would not be violation of the 8
Russell S.T., Franz B.T., Driscoll A.K., 2001. Same-sex romantic attraction and experiences of violence in the adolescence. American Journal of Public Health, vol. 91, pp. 903-906
Convention. I think it is more appropriate to make distinction between interference and attacks on identity, since term attack always imply something illegal. Except those attacks resulting in negative consequences for the child, which should be dealt not just because such attacks are unfair if they are provoked by sexual orientation of the child, but because, such actions against every child, we could discuss about where influence of heterosexual culture actually represents just interference and where it represents attack on child's identity. I do not think that celebrating of heterosexual culture itself represents such an influence to be defined as attack on child's personality. It could be defined as attack if it represents the only right option and if it is considered as something better than homosexual culture. The reverse matter is also possible. Attack would represent any action which is, in fact, used to promote two options that are equal, as one is better than other one. In the case that the environment of the child favors one option and completely denies even existence other option, and that the child belongs to the other option, we would have, attacks on his or her personal integrity. Protection from such attacks, if we follow wording of the Convention, should also be provided by the State. According to the art. 13 para. 1. of the Convention, the child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice. This would, in conjunction with art. 8 of the Convention, mean that child has right to seek and receive information on his or her sexual orientation, regardless frontiers. That would not mean, therefore, that child would receive information that only heterosexual life is appreciable. If the State, would actually undertake measures to protect child's personality and to ensure him right to preserve his sexual identity, then it cannot do that and not to provide to him information which are abundant and not biased. There arises issue of sexual education and giving truthful information, not guided by religious and dogmatic views. Undoubtly, the child has right to receive religious and other information, but such information should not be given as only ones. Unfortunately, this is not a practice, especially in countries as Croatia where international contracts with Holy See direct children's rights on this issue, and it seems that those contracts have greater importance than the Convention. Although paragraph 2 of this article might seem to have excluding element for mentioned right of the child, because in the context of sexuality there is usually arisen issue of morality, I do not think that right of the child to preserve his personal integrity should be subjected to the moral views of the society. Rights of individual's personality should never be of less importance than fickle moral views of the society – it could be only of greater importance. Furthermore, artice 13. of the Convention might be used in conjunction with art. 17 of the same Convention, which says that States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. Information regarding child's mental health are also highlighted here, so, it should be noted that if in public schools child receives information that homosexual are morally defective or that
homosexuality is illness, child does not receive information that do promote his or her mental health. Finally, art. 27 par. 1. of the Convention proscribes that States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development. Such a standard is closely related to the child's personal integrity and not to establish mechanisms of the protection of the children from attacks on heir personality on the ground on their non-heterosexual orientation would represent, in some countries if not today, but then in future, violation of several provisions from the Convention. Protection of private life, home, correspondence, honor and reputation Right to personal integrity and right to private life are very close. Article 16, paragraph 1 of the Convention says that no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, or to unlawful attacks on his or her honor and reputation. Information from private life of the child, regarding him or his parents or legal guardians or other family members and some facts from correspondence, if disclosed might provoke society to condemn child and attack his honor and reputation. Right to privacy was firstly introduced in American law in 1861. by Samuel Warren and Louis Brandeis, who defined that matter which is disclosed about individual, regardless how it does not subject of public interference, to be effective, it has to have direct tendency to impair individual in his relations to others and has to subject him to the hate, mockery and condemnation by the society.9 In society where there would not be such an effect of disclosing someone's sexual orientation, such an action would not represent attack on honor and reputation. It is not important the fact that homosexuality is not something offensive, but important is the fact that it could subject individual to hate and condemnation. It is opened question where private life of the child begins and where it ends regarding his parents and other family members. This is because, while child residents with his or her parents in the same house, there would be greater interaction between his private live and private lives of his parents and other family members. While interference of the third person (neighbors or others) in child's home would represent attack on his private life, interference of child's parents or other family member in child's room would not. But, if child doesn't want that his parent know about his sexual orientation and, there is in the room or his correspondence some evidence of that, it is questionable would interference of parents in such materials ("proofs") represent attacks. According to art. 130 of Croatian Penalty Code, person who with no authorization opens someone's letter will commit criminal act. There is, however, exclusion of illegality, if parent or legal guardian opens letter of his minor child, because in that case, he or she is authorized to do so. In my opinion, interference of the parents is acceptable till there is no any action from the side of the parent which will be unacceptable for child's personality. If parent determines
9
Warren S.D., Brandeis L.D. 1890; "The right to privacy." Harward Law Review, vol. VI., no. 5.
from such an interaction that his or her child is homosexual, attack would exsist if such finding provoke parent to harm the child. Under Croatian criminal law, there are no special offenses if someone attacks on the reputation and honor of the child. Attacks might be direct or indirect. Direct attacks would be if someone discloses sexual orientation to the child and indirect if someone discloses sexual orientation of child's parents, legal guardians or family members. Except criminal responsibility for such actions, there are some other mechanisms of, of course judicial protection of individual's honor and reputation. Offenses against honor and reputation are in civil law considered as attacks on private life or presonal integrity. There are possibilities of damage compensations. Protection from punishment The Convention does not know exclusion of application of criminal sanctions to the child, but only measures which might be undertaken in criminal procedure against child who committed a crime according to national or international legislation, according to art. 40 para. 2a). But, with this is not excluded some better model of children's protection in that sense, according to art. 41 of the Convention. In Republic of Croatia, criminal law is not applicable to the children which were in the time of committing a crime younger that fourteen years of old,10 while it could be applied on minors.11 To the minor offenders, sanction of imprisonment for minors will be applied and Penalty Code knows the term of younger adult for who it excludes application of sanction as long-term imprisonment.12 In this section, Croatian legislation applies different model regarding young offenders, from which it is obvious that maximal imprisonment for young offender might be determined up to 20 years. Consideration of homosexuality in Croatian criminal legislation Yet in 1977, after the reform of Croatian criminal legislation, incrimination of homosexual act between adults was excluded. Exclusion of that illegality, however, was introduced as a new criminal act defined as un-natural fornication, which had basis in the incrimination of anal coitus (copulum in anum) between men, but only if such a intercourse was carried out under criminal conditions. There was distinction between such criminal act and the term of impure acts carried out under criminal conditions between persons of the different or of the same sex. There were known also three types of qualified criminal acts of un-natural fornication: (1) un-natural fornication of adult man and child, (ii) un-natural fornication of adult man and boy under criminal conditions and (iii) un-natural fornication of man and minor. If there would be about lesbian intercourse, un-natural fornication was covered by the term of impure acts.13 10
See art. 10 of Croatian Penalty Code Accroding to art. 89 para. 10 of Croatian Penalty Code, minor is a person older than fourteen but still younger that eighteen years of old. 12 According to art. 53 para. 4 of Croatian Penalty Code, sanction of long-term imprisonment cannot be determined for the offender who in the time of commiting a crime was younger than twenyone years of old. 13 See Šeparović Z., 1985. Borders of risk – ethical and legal approach to medicine, page 208; Law School in Zagreb 11
From there it could be seen that lawmaker has ruled out direct formulation of homosexual intercourse as criminal act, but it introduced fundamental segments of sexual act between men in the formulation of un-natural fornication only if it is committed under criminal conditions (like by force). Sexual intercourse between women lawmaker considered only as the impure actions, for which remained unclear is it needed for that crime to be committed under criminal conditions or not. Discriminatory perspective was here especially meaningful for children since criminal legislation has known distinction between un-natural fornication of adult man and child and another, un-natural fornication of adult man and boy under criminal conditions. Therefore, legislation has known different type of sanctions for impurity trough the context of un-natural fornication when there was about boys and victims and where victims were girls. Modern criminal legislation in Croatia does not include such the incrimination. It would be considered as a rape if someone uses force or threat to have sexual intercourse or action equalized with intercourse with another adult person. There is no distinction between criminal acts against sexual freedom of children on the basis of child's sex, so every sexual intercourse with a child or equalized sexual action is punished. Qualified criminal act is sexual intercourse or equalized sexual action with child committed by force, equally for boys and girls. Homosexual intercourse under criminal conditions is qualified as criminal act of rape. Sexual orientation of the offender or of the victim is not mentioned as special mark, and judicial practice in those cases is not still investigated enough to determine do homosexual modality in committing a crime represent a heavier condition in relation to heterosexual. However, there is a tendency of public, under the influence of media, to equalize homosexuality and pedophilia and to give more attention to homosexual modality of such a crime. Age of consent Regarding age of consent, in Republic of Croatia, there is no distinction on the ground of sexual orientation. Judicial practice takes attitude that acceptance of child on sexual intercourse is not relevant and could not be considered as reason to exclude illegality for offender, even if child initiated sexual intercourse and received money for that, because child cannot realize meaning of sexual freedom and therefore cannot decide about it. In Penalty Code it is not defined when young person might give consent on sexual intercourse, but from the same one, from other provisions, it could be concluded when and in what conditions would sexual intercourse with young person be a crime. Person older than fourteen years is according to Penalty Code considered as minor, and sexual intercourse or equalized sexual action with that person are not incriminated, unless if it was forced act, which is treated then as a qualified act of rape.14 14
See art. 188 para. 4 of Penalty Code
Homosexuality and application of criminal sanctions on the children In some countries around the globe, homosexual intercourse is still punishable and for it could be applied imprisonment or the death penalty.15 According to the report of Human Rights Watch from October 31, 2001, great concern was expressed because of conviction of 16 yr old Mahmud in Egypt on the ground of his homosexual orientation, resulting in imprisonment of three years. HRW referred to the art. 37 of the Convention saying that every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person and in a manner which takes into account the needs of persons of his or her age. Furthermore, it was highlighted that according to art. 40 para. 2a) of the Convention no child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed. In the particular case, convicted boy was arrested and inquired under suspect that he was linked to the group of 50 homosexual men for which it was suspected that they had sexual relations with other men. In this case, and in the concordance with the interpretation of the Convention from the side of HRW, eventual sexual orientation or sexual behavior of child is irrelevant. There was irrelevant is sexual orientation or behavior concordant with it criminal act or not, but rights of the child were considered beyond that, so the main argument was that in particular case police and state attorney made process mistake. This was because the proof, confess of the child, was taken by force. However, it is very problematic that such an argument would have no ground in the case that police ensured lawyer to the child or that the confess was not taken by force, because even in that case, child would be accused and convicted for homosexual intercourse, according to Egyptian legal system. Highlighting importance of stressing out violation of art. 37 of the Convention, because the child was undoubtly exposed to the treatment against that provision, it should be noted that arguments relying only to the process issues in particular case, as well for other cases of this nature, are insufficient. In the substratum of the case itself, however, there is incrimination for which child was convicted, and therefore is, before all, needed to discuss question of sexual orientation of the child. With no further arguments against such action at all, it seems that it would be reasonable to convict child because of his sexual orientation or sexual intercourse with the person of the same sex, if that would be in concordance with Egyptian legal system. Regardless if punishment for that child was milder than for adult men "caught" with the person of the same sex in homosexual intercourse or with homosexual people in the same group, it should be mentioned that nor the adult person nor the child should not be punished on any way because of basic parts of their personality, which does not represent any objective threat to others.
15
On 19th July 2005, in Iran, two young men, Ayaz Marhoni (16) and Mamud Asgari (18) were hanged because of homosexual intercourse, reported by several international organizations. However, official report was that those men were hanged because they raped 13-old boy. After some LGBT organizations around globe protested in front of Iranian embassies of their countries, official report of Iranian Government has changed to that those men, actually kidnaped and raped more children.
Here exists the problem with restrictions under national legislation, so that even Convention protects children from the convictions and punishment, this would not be enough if, as it could be seen from the wording of art. 40 para. 2a) of the Convention, homosexual intercourse or links with groups of homosexual men, would be incriminated through Egyptian criminal law. Convention protects children from prosecutions only if they committed act which are not incriminated nor through international or through national legislation. Although homosexual intercourse is not incriminated under international laws, it is, however, under Egyptian criminal system. Therefore, following the wording of the Convention, in such a case would not exist violation. And while someone's sexual orientation and a way how he or she lives it are, in fact, parts of his or her privacy, there is no, however, guarantees that countries applying criminal prosecution against those people, on the same time respect rights of the children in criminal procedures in concordance with the Convention. As in those cases prosecutors and the police, as well as whole judiciary system, have to make interference in the private life to such an extent to surely determine one's, for them unacceptable behavior, it is highly possible that they will have to use unlawful methods to get proofs, and confessions too. How to prove one's sexual orientation and not to ask him about it? How to prove that someone had sexual intercourse with the person of the same sex if there were no witnesses? Expectations that those countries will respect issues of process criminal law are unreal, at best. There is the reason, therefore, why I believe that sexual orientation of the children should not be separated from other rights mentioned in the Convention and that except process issues in those cases, there should be resolved one most important – why people, children and adults, are even punished because of heir homosexual behavior? It doesn't seems that ensuring rights of the child regarding process criminal issues on the international level and regarding material criminal law on the national level represents sufficient model of protection for homosexual children in the countries which have criminal sanctions for homosexual behavior. If those countries, as I mentioned earlier for Egypt, would respect Convention on the matter of process criminal law, there would be no violation if they would convict child for homosexual intercourse if it is recognized as criminal act on the national level. In this context, I find Convention as insufficient model of children's protection. ISSUES OF FAMILY LAW In this section I discuss several rights of the child regarding family law. First is right of the child to live with his parent, regardless sexual orientation of the parent, second one is to have equal rights if lives with a parent who is in the same-sex union as well as children whose parents live in opposite-sex unions, and finally right of the child to be adopted. Sexual orientation and custody The Convention guarantees right of the child to live with his parents. According to the art. 9 para. 1 of the Convention, States Parties will ensure that a child shall not be
separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. This issue is especially present in cases where, after the divorce, homosexual parent seeks custody on his child, and other parent (mother or father) derogates that because of sexual orientation of applicant. The best interest of the child is core subject which should be determined in this case. So, it is needed to give answer on the question, does sexual orientation of parent and a way on which he expresses it any link with the best interest of the child and could such a link represent negative influence on the child? If the answer would be affirmative, therefore it would, according to the law, be possible to separate child from his homosexual parent, with explanation that such an action is in the best interest of the child. However, there shall be some greater insight in the matter. I will, therefore, subsidiary apply here judicial practice of the European Court for Human Rights. Case of relevance I see here is Salgueiro da Silva Mouta v. Portugal,16 where ECHR found violation of art. 8 in conjunction with art. 14 of European Convention for Human Rights regarding right to private life and right on equality before the law. Case has opened interesting questions and it is good to refer on the view of those issues from the side of ECHR. In particular case, applicant was man born in 1961, who has married to his wife in 1983 and officially divorced from her in 1993. Custody on his daughter was given to the mother, but he had right to keep contact with her. From April 1990 applicant left hiswvife and till today he lives with a man. Since mother did not respected his right to keep contact with the daughter, in 1992 applicant applied for custody on his daughter, claiming that he has better possibilities to care for the child. In her memorial, mother alleged that applicant sexually abused his daughter. Lisbon's Court dealing with family issues in 1994 gave custody to the applicant, after psychologist expertise was made and determined that there was no reason to suspicion that applicant abused his daughter. From the middle of April till the middle of November of 1995, daughter lived with her father, and after that her mother kidnapped her from the father, so the applicant brought up criminal prosecution against the mother. At the beginning of 1996 mother applied to higher Court who changed decision of the lower Court and custody over the child gave back to mother. Reason for such a decision higher Court found in fact that parent of the child cannot argue that it is better for the child to live with him while he is in the same-sex union with other man and that child shall live in traditional Portugese family. The Court highlighted that t cannot go in the subject is homosexuality illness or not, but that it is in any case "abnormality and that children should not grow up in the shadow of abnormal situations". The Court, although it gave custody to the mother, it left to father possibility to keep contacts with his daughter, which possibility mother has never respected. Judges made decisions in the Council of three judges, and one among them had partially dissenting opinion regarding the decision. He said: "I voted in favor of this decision, with the reservation that I do not consider it constitutionally lawful to assert as a principle that a person can be stripped of his family rights on the basis of his sexual orientation, which – accordingly – cannot, as such, in 16
App. no. 33290/96, judgement delivered at 21st March 2000.
any circumstances be described as abnormal. The right to be different should not be treated as a ‘right’ to be ghettoized." In his application to the ECHR, the applicant alleged that national court made its decision to gave back custody to the mother only on the ground of his sexual orientation and that by this it was done violation of article 8 in conjunction of article 14 of the European Convention. In their memorial, Portugese Government alleged that article 8 of the European Convention might be applied to the particular case, but just in the context where it refers to the life of applicant with his child, while authority did not interfere in his right regarding his sexual life. Furthermore, the Government alleged that in the context of his life with his child, court made decision in concordance with art. 8 para. 2 of the European Convention because it had legitimate aim – protection of the best interest of the child – which was necessary in democratic society. Therefore was given conclusion from the Government that decision of the national court was in the best interest of the child and independent of applicant's sexual orientation, so he could not be discriminated on any way. As it was mentioned earlier that appellate Court in its decision stated that child shall ive in traditional Portugese family, ECHR did not accepted Government's argument that there were no interference in sexual life of applicant, but contrary, that sexual life had decisive role. This because appellate Court warned applicant that in the contacts with the child he shall not take actions on which ground child could realize that he lives with other man "on the way similar to the life between man and woman". Therefore ECHR had to conclude that appellate Court made distinction on the basis of sexual orientation which is unacceptable regarding European Convention. ECHR made unanimously decision that there was violation of art. 8 in conjunction with art. 14 of the European Convention. And if we apply art. 9 para. 1 of the Convention on the Rights of the Child, it could be seen that decision of the Court on separating child from the parents, could be done only if such an action is in the best interest of the child. From decision of ECHR it is visible that child's best interest could not be determined in relation to sexual orientation of his parent. The fact that father lived in union wit other man was not decisive factor to deny him right on custody over the child. Right of the parent to keep contact with the child from which is separated, is according art. 9 para. 3 of the Convention also the right of the child to keep the contact with the parent if it, of course, is not contrary to his best interest. Deciding that instruction of appellate Court to the father that he shall not undertake any action to make visible to the daughter that he lives in union with other man, ECHR took view that nor sexual orientation nor the fact of same-sex union shall not be obstacle to the complete enjoy of parental rights. By their decision, recognizing right of parent, ECHR recognized also complementary right of his daughter. Therefore in this decision of ECHR should be found precedent arguments for interpretation not just European Convention but also Convention on the Rights of the Child. Same-sex union and its status as a family
In this section I discuss right of the child to enjoy parental care of his homosexual or transsexual parent and to live with him and his partner in the family union – therefore the same rights shall be acknowledged to the child as to those children whose parents live in heterosexual unions. The answer on the question does Convention give such a right to the child; we should generally take from art. 2 of the Convention. Any right from the Convention should not be denied to the child on the ground of some status of his parents. Of cure, non-discrimination provision stated in general does not provide implementation models at the same time, which are reflected through other provisions of the Convention, but with the different legal effect. The family First and fundamental issue, which demands clear answer, is what is family by definition? International law is not concordant on this issue. According to art. 16 para. 3. of Universal Declaration on Human Rights, the family is fundamental grup unito of the society. The term of family is covered by the provision related to marriage and a marriage is stated on the first position, and by its wording it restricts legal recognizing of marriage as the union of man and woman. The same model is used in the Covenant on Civil and Political Rights. European Convention on Human Rights has no special definition of family, but in art. 12 it emphasizes that men and women of the full age have right to marry and found a family in concordance with national laws governing exercise of those rights. Eventually crystallization of this term from European Convention would evolve through practice of ECHR. Much modern formulation, but with which family is still not defined, comes from European Charter on Human Rights,17 where art. 9 says that right to marry and found a family shall be guaranteed in concordance with national legislation, but marriage is not considered just as a union between man and woman. Here ECHR founds that lawmaker intentionally dropped out reference to the man and women, to provide different models of exercise of such a right out of the context of opposite-sex union.18 The Carter in art. 21 para. 1 bans discrimination of any kind, inter alia and on the basis of sexual orientation. Therefore art. 9 of the Charter taken in conjunction with art. 21 of the same Charter, might be used to interpret as right of homosexual people to marry and found a family. In the case of Christine Goodwin v. UK, where applicant was biological male who changed his sex to women by surgery, while United Kingdom denied to her right to marry, arguing that in such a way it would provide possibility of marriage between persons of the same sex. One of the contra-arguments of Government was that this woman was incapable for procreation. ECHR taken position that, although right to marry and found a family are parts of the same provision in the art. 12 of the European Convention, right to found a family cannot be condition of the right to marry.19
17 18
See Official Journal of the European Communities C 364/10 of 08th December 2000 See case of Christine Goodwin v. the United Kingdom, br. 28957/95 of 11st July 2002, § 100
19
See case of Christine Goodwin v. UK, no. 28597/95 from 11st July 2002, § 98
The same Court did not discuss about does marriage have to be condition of the right to found a family. While marriage is considered as the basis of a family and while between those two rights is not made clear distinction, family will be equally heteronormative as marriage is. Article 5 of the Convention of the Rights of the Childs mentions members of extended family, which except parents might include grandparents and grannies, uncles and aunts, and other cousins. But, in practice, every member of extended family, if is not the cousin of the child, will be legally recognized only if it is element of heterosexual relation with some child's cousin (uncle's wife, aunt's husband). In ideal sense, following wording of art. 16 para. 2 of the UDHR that family is fundamental group unit of the society, it could be said that family is every union where people live in the same home, regardless are they cousins or not, or regardless of sexual relations between them. Children should, in such conditions, enjoy equal rights as other children. Family should, therefore, be necessarily separated from the marriage, because even that marriage is not heteronormative it should not be condition with which status of family is acquired or with which such a status is more important than, for example, status of single-parent family. Legal position of children of homosexual parents In art. 2. of the Convention it is indirectly determined that State party has, firstly to ban discrimination of the child on the ground of sexual orientation of his parents or their residence in same-sex union, and second, it has to develop implementation models for protection from such discrimination. Therefore no bill shall be discriminative to the child, because in practice there should be mechanisms to protect child from that. In Croatia there is example different from mentioned principle. According to the Family Law, persons of the same sex cannot marry. As in the legal sense, marriage does not represent only group of rights for its partner, but group of rights for their children. This is concretely right on adoption, which from the perspective of the child represent important factor in the protection of child without sufficient parental care. When person marries with a person of a different sex, that person becomes stepmother or stepfather to the child and, according to law; he or she may adopt that child. Marriage is here condition of adoption. Same-sex partners cannot marry and regardless how long their children lived with them, they cannot adopt them. It could be real problem when parent of the child become ill or dies. Or, it could represent problem with inheritance. Child whose parent is married [with person of opposite sex], as he or she may be adopted from the parent's husband or wife, also would have right to inherit that person. If there is about same-sex union, child will never have such a possibility. Some legal discussions on this issue give view that child whose parent is in same-sex union doesn't even need adoption from the side of parent's partner, because in legal term adoption is mechanism to protect child without sufficient parental care, and while this care is sufficient, there is no need for adoption. It might seem that this argument is right, if we strictly follow meaning of such provision, but therefore this should be applied on the opposite-sex unions, on the same time. There should be, in such conditions, no possible adoption nor from the side of parent's heterosexual partner, if single-parent care is sufficient. Obviously, such a practice
is not provided, but contrary, so in its basis there is discriminatory action which, instead to be prohibited, by law makes system contrary to the non-discrimination provision in the Convention. According to the art. 8 of the Convention, State Parties will ensure right of the child to preserve his or her personality, in which family relations recognized by law are included. There is the problem because in the context of preservation child's personality and family relations, governing of that right is fully left to the national legislation. Here Convention proscribes only family relations recognized by law. Therefore such a solution does not ensure higher power of the international law over the national one, but only that national legislation regarding this right shall be respected. If we consider relation between art. 2 and ar. 8 of the Convention regarding same-sex family and children living in them, we will have practical conflict, because discrimination of children regarding rights in art. 8 would not exist if child would have no right to preserve his family relations if hey are not recognized by law. Therefore, even if there is actually discrimination regarding right from art. , based on circumstances related to child's parents, as sexual orientation is, it would not be unlawful if there is no legal status of same-sex family. Leaving those issues to the national legislation, especially in those countries where homosexual relations are criminalized, does not give the same right for children and minimizes power of the Convention. Denial of right from art. 8 therefore does not represent discrimination in the sense of article 2 of the Convention if same-sex families are not recognized by law. Right to be adopted Through art. 20 para. 1 of the Convention, a child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. In the context where it is about child with no sufficient parental care, State might ensure different recuperation mechanisms of family status as adoption is.20 Article 21 of the Convention proscribes that States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration. Whenever there is debate on the issue should it be possible or not for same-sex partners to marry, then it is governed mainly with the presumption that then they will acquire right to adopt child. Presumption that existence of marriage is only condition for adoption is completely wrong. On the same time, it is wrong reasoning that sense of the adoption is actually exercise of right to be a parent. It would be contrary to the Convention if right to adopt child would be interpreted in such a way, because the best interest of the child shall be paramount consideration. Adoption is primary right of child on parental care and secondary right of person to be a parent. Therefore, in this section I intentionally use the term "right to be adopted" since I would like to discuss this issue from the position of he child.
20
According to art. 20 para. 3 of the Convention
Under the section mentioned earlier, the same argument regarding parental care cold be applied to the adoption. Numerous scientific studies have shown that sexual orientation of parent does not influence sexual behavior of his child. As relevant contribution to science and law here, we could take observation of Judith Stacey and Timothy Biblarz.21 In their research, they performed meta-analysis of 21 psychological studies performed between 1981 and 1998 for which they considered that are best equipped to give answer on the question does and how sexual orientation of parent matters. Analysis showed that homosexual parents and their children display no differences from heterosexual counterparts in psychological well being or cognitive functioning. As I mentioned before, is it not task of jurist to determine psychological issues regarding parenting of homosexual couples, because experts from those fields will do so, but, legal expert also might consider those finings to determine framework of the best interest of the child. Therefore, considering best interest of the child, in every particular case, it should be determined does some behavior of possible adoptive parent represent any negative influence n the child's best interest. First of all, it might be enough to see is homosexuality, according to international standards, mental disorder or not. Then, meaning of scientific findings also should be considered. It is simply unjust not to consider such information because it might seem that sufficient argument is to say that something is contrary to the tradition. After all, basic issue with adoption is ot preservation of tradition but best interest of the child. Only relevant question here is to assess how quality of interactions is in such a family and not to see is form of such a family acceptable in relation to traditional views. It is finally unfair for the children because in such conditions if it is more possible that child would be given to the heterosexual couple, although quality of life in such a family would be lower than in homosexual one, only to preserve tradition. CONCLUSION The issues I discussed in this work does not cover every right which child might exercise, but just those I seen as most important from the perspective of my activistic work. It seems that most important one from those I separated is right to protection of personal integrity. It, actually, pervades all aspects of the Convention and every mentioned right cold not be applied to (queer) children without considering personal integrity of them. According to art. 31 para. 1 of the Convention, States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts. Second paragraph proscribes that States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.
21
Stacey J., Biblarz J.T., 2001. "(How) Does Sexual Orientation of Parents Matter. American Sociologcal Review, vol. 66, pp. 159-83
Cultural life, as it seems from the Convention, represents fundamental part of child's life. Therefore, every child has right to participate in of cultural life. Primary question here, does child has right to participate in queer culture? Answer is, undoubtly, following wording of Convention – YES. Although queer festival for this year is devoted to the children, I was disappointed because when I was at the opening evening, I have seen no children. This is not failure of organizers, but unfortunately failure of the society. In some ideal society, I could imagine that homosexual or transgender child would have all needed protection. In his or her family, primarily. Unfortunately, in the practice, family as the fundamental group unit of the society could be worst place for homosexual child. Most protective environment becomes most dangerous one. In ideal society, family would be full of love and understanding for their young member; they would be supportive and would represent first line of defense for child from unlawful attacks. Second would be teachers, social workers, medical professionals (pediatrics) who will give their best to improve development of that child and not to subject him or her to inhuman and degrading treatment, which at the best is represented by reparative therapy and other suspicious "pedagogic" methods. Third would be child's school peers and friends – they would not verbally or physically attack on their friend, they will accept him or her as equal, because that they learned from their parents and teachers. The whole society, finally, would celebrate diversity. To celebrate diversity there would be needed social evolution, evolution of mind and conscience. For that, the Convention on the Rights of the Child simply is not enough.
