Chapter four: Freedom of Assembly, Association and Expression

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The rights to freedom of expression, association, and peaceful assembly are grouped together because they are often intertwined. Freedom of expression is frequently a necessary component of the rights to freedom of assembly and association when people join together for an expressive purpose. All three are protected in international and regional human rights instruments and are considered essential to the functioning of a pluralistic and democratic society.^[1] Human rights activists also need to be able to exercise these rights to do their work.

The cases in this chapter span more than thirty-five years, yet the issues they address are still contested. The ability of LGBT individuals and organisations to organise, mobilise, and speak out on matters of sexuality is often restricted. Historically, discussion of homosexuality was frequently prohibited in the name of public morality. In 1988, for example, the United Kingdom adopted Section 28 of the Local Government Act, which prohibited local authorities from “promot[ing] homosexuality or publish[ing] material with the intention of promoting homosexuality”. Local authorities were also prohibited from teaching in schools about “the acceptability of homosexuality as a pretended family relationship”.^[2] Although Section 28 has since been repealed, similar laws are exist elsewhere. In July 2009, the Lithuanian Parliament adopted a law entitled Law on the Protection of Minors against the Detrimental Effect of Public Information. Adopted over a presidential veto, the law prohibited information that “agitate[s] for homosexual, bisexual and polygamous relations”. Following an international outcry, that provision was deleted but a new version of the law banned information that “denigrates family values” from places accessible to minors.^[3] An Anti-Homosexuality Bill, introduced in the Ugandan Parliament in September 2009 but never brought to a vote, would have prohibited all “promotion of homosexuality”.^[4] Its existence was used by the Minister of Ethics in December 2010 to prevent the screening of a human rights documentary that briefly mentioned homosexuality.^[5] A recent case in Malawi examined the police seizure of clothing (t-shirts and wrappers) imprinted with a non-discrimination message by local organisations working on LGBT health and rights.^[6]

The UN Human Rights Committee has addressed only once the legality of restricting discussion of homosexuality, in the 1982 case of Hertzberg v. Finland. The Finnish Penal Code imposed a six-month prison sentence or a fine on anyone who publicly encouraged “indecent behaviour between persons of the same sex”.^[7] The authors of the communication were journalists whose television and radio programmes had been censored under the law. The government invoked protection of public morals to justify the limitation, as provided for in Article 19(3) of the ICCPR. The HRC, without examining the content of the censored programmes, held that the State was due a “certain margin of discretion” in matters of public morals and concluded there was no violation.^[8] It noted furthermore that the audience for television and radio programmes could not be limited and that “harmful effects on minors” might occur.^[9] An individual opinion, although concurring in the conclusion, pointed out that the conception and contents of ‘public morals’ referred to in article 19(3) are relative and changing. State-imposed restrictions on freedom of expression must allow for this fact and should not be applied so as to perpetuate prejudice or promote intolerance. It is of special importance to protect freedom of expression as regards minority views, including those that offend, shock or disturb the majority.^[10]

These views appear to have influenced the Committee’s approach to the question of public morals. In General Comment No. 22, the Committee stated that “the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations … for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition”.^[11] The Human Rights Committee quoted this language in its General Comment on Article 19 (freedom of expression).^[12]

The Human Rights Committee will have the opportunity to revisit Hertzberg when it considers the case of Fedotova v. Russia. In the domestic case, discussed below, the Russian Constitutional Court found that a law criminalising “homosexual propaganda” near schools did not violate the constitutional guarantee of freedom of expression.

Restrictions are not limited to expression. The freedoms of assembly and association are frequently violated too. In recent years authorities in the Russian Federation, Moldova, Romania, Poland and Latvia have banned pride marches and tolerance and equality assemblies.^[13] Authorities have also refused to register LGBT organisations in a number of countries, including Mongolia, Botswana, Lesotho, and Turkey.^[14] The European Court has consistently held that even shocking or disturbing ideas are protected by the rights to freedom of association and peaceful assembly. In Baçzkowski v. Poland and Alekseyev v. Russia, the European Court found that denying LGBT groups permission to assemble peacefully violated the right to assembly protected by the Convention, and also violated the right to non-discrimination on the basis of sexual orientation.^[15]

In Alekseyev, the Government claimed that a Pride March had been banned to prevent public disorder, and to protect morals and respect for religious beliefs. It argued that children might be exposed involuntarily to homosexuality and that the “ideas of the event organisers … encroached on the rights, lawful interests and human dignity of believers.” Accordingly, the Government submitted, “any form of celebration of homosexual behaviour should take place in private or in designated meeting places with restricted access.”^[16] The European Court firmly rejected these arguments. Freedom of assembly, it recalled, included assemblies that might “annoy or cause offence” to others.^[17] It was the duty of the State to protect demonstrators and enable lawful demonstrations to proceed peacefully. It would in fact be “incompatible with the underlying values of the Convention if the exercise of Convention rights by a majority group were made conditional on its being accepted by the majority.”^[18] The Court disagreed with the Government’s contention that no European consensus existed on homosexuality, and in any event found the claim irrelevant because “conferring substantive rights on homosexual persons is fundamentally different from recognising their right to campaign for such rights.” There was no ambiguity about the right of individuals “to openly identify as gay, lesbian or any other sexual minority, and to promote their rights and freedoms, in particular by exercising their freedom of peaceful assembly”.^[19]

The themes identified in the work of the Human Rights Committee and the European Court – the importance of advocacy in a democracy, the role of public morality in limiting rights, and the protection of children – are all reflected in the cases presented here. Furthermore, to a significant degree, many of the cases reference and make use of international and comparative law.

In the United States, prior to the Supreme Court’s decision in Lawrence v. Texas, at a time when several States criminalised consensual same-sex conduct, students formed LGBT support groups at universities. Universities, perhaps not surprisingly, tried to shut them down, and many of these disputes ended up in court. Appellate courts uniformly concluded that the justifications advanced by university authorities for refusing to recognise such student groups were insufficient to justify the infringement of freedoms of expression and association guaranteed by the First Amendment of the Federal Constitution.^[20] In Gay Alliance of Students v. Matthews, the University’s governing body denied the Alliance’s application to register as a student organisation. The Alliance’s purposes were to build “a supportive community among individuals who believe in the right of self-determination with regard to sexual orientation” and “to advocate for gay rights”. Before the court, the University argued that granting recognition to the group would encourage students to become members and would “increase the opportunity for homosexual contacts”. The Court’s response was twofold:

If the University is attempting to prevent homosexuals from meeting one another to discuss their common problems and possible solutions to those problems, then its purpose is clearly inimical to basic first amendment values. Individuals of whatever sexual persuasion have the fundamental right to meet, discuss current problems, and to advocate changes in the status quo, so long as there is no incitement to imminent lawless action.

If, on the other hand, [the University’s] concern is with a possible rise in the incidence of actual homosexual conduct between students, then a different problem is presented. We have little doubt that the University could Constitutionally regulate such conduct […] But denial of registration is overkill.

Other US courts reached similar conclusions. For example, in Gay Student Services v. Texas A&M University (TAMU), the Court stated: “As to TAMU’s asserted interest in preventing expression likely to ‘incite, promote, and result’ in then-illegal homosexual activity, we emphasise that while Texas law may prohibit certain homosexual practices, no Texas law makes it a crime to be a homosexual.”^[21]

In Gay Students Organization v. Bonner, the Court emphasised that the organisation’s “efforts to organise the homosexual minority, ‘educate’ the public as to its plight, and obtain for it better treatment from individuals and from the government thus represent but another example of the associational activity unequivocally singled out for protection in the very ‘core’ of association cases decided by the Supreme Court”.^[22] These cases show that, even where the conduct that defines the class is criminalised, individuals still have the right to freedom of expression.

The other cases in this chapter do not deal with direct criminal prohibitions but with public morals limitations on speech and other forms of expressive activity on the subject of homosexuality. In most of these cases, courts rejected the argument that protection of public morals justified the infringement. Thus in In re Road Traffic Act, the Constitutional Tribunal of Poland emphasised the importance of freedom of assembly, calling it a cornerstone of democracy. It warned of the dangers of curtailing this freedom to accord with majority views. Finally, in language reminiscent of the Constitutional Court of South Africa in National Coalition for Gay and Lesbian Equality and the High Court of Delhi in Naz Foundation, the Constitutional Tribunal distinguished “public morals” from the moral views of legislators or other public figures. The latter could not use their personal views as a reference or criterion for restricting the right to peaceful assembly.

In Siyah Pembe Üçgen Izmir, the Izmir Court was not persuaded by the prosecutor’s argument that an LGBT organisation could be restricted on grounds of “immorality”. Sexual orientation and gender identity were facts, it reasoned, not matters of morality or immorality. Notions of public morality were subjective and could change with time and place. In order to characterise an association’s aims as immoral, one would have to show that its aims were against morals that were universally accepted. Since the prosecutor had not brought evidence of this sort, the Court concluded that the application to dissolve the organization should be denied.

The Izmir Court’s reasoning concerning public morality is similar to the UN Human Rights Committee when it explained the use of public morality as a restriction under Article 18 of the ICCPR.^[23]

Similarly, in Ang Ladlad, the Supreme Court of the Philippines relied on the ICCPR, the UDHR, cases from the European Court and the UN Human Rights Committee and cases from the United States when it reversed a decision by the Commission on Elections to deny Ang Ladlad registration as a political party. Quoting extensively from Justice O’Connor’s concurrence in Lawrence v. Texas, the Supreme Court held that “moral disapproval of an unpopular minority” was not a legitimate State interest under the equal protection clause. Although many Filipinos disapproved of homosexuality, the values of democracy precluded using religious or moral views to restrict Ang Ladlad’s rights. Its decision was based on both constitutional and international law. Reading the right of political participation under Article 21 of the UDHR in light of the decision of the Human Rights Committee in Toonen v. Australia, the Court found that international law protected the right of LGBT organisations to participate in the political process.

The Supreme Court of Argentina likewise relied strongly on international and comparative law, including the US case of Romer v. Evans, when it found that denying registration to a transgender organisation violated the Constitution. The Superintendent of Corporations had argued that Associación Lucha por la Identidad Travesti-Transexual did not benefit the common good but only a discrete group of transgender individuals. The Court of Appeals had found no violation of constitutional rights. On appeal to the Supreme Court, the Attorney General, in support of the Association, argued that the “common good” referred to social conditions that permitted all members of society to achieve the highest enjoyment of democratic values, including pluralism. The Supreme Court agreed and concluded that the “common good” could not be limited to what the majority considered good.

Concern to protect children from exposure to information about homosexuality arises in various ways in these cases. In In re Futyu Hostel, where an LGBT youth group was denied permission to stay in a hostel, the Tokyo High Court reasoned that the hostel had a legitimate purpose in seeking to prevent sexual activity among youth but that this applied to all, not just same-sex sexual activity. It reasoned that neither heterosexual nor homosexual youth were likely to engage in sex in dormitory-style rooms. In Hatter v. Pepsi Sziget, which examined the contractual and constitutional rights of an LGBT organisation to participate in a cultural festival by displaying of educational materials on homosexuality, the Hungarian court accepted that protecting children from information about homosexuality was a legitimate interest. The State had a constitutional obligation to ensure children’s “satisfactory physical, mental and moral development” and contact with an LGBT organisation might have a negative effect. Nevertheless, when balancing this right against the right to freedom from discrimination based on sexual orientation, this ground was insufficient. Hatter’s participation in the festival did not create a specific risk that a child might join a homosexual association.

A contrary conclusion was reached in In re Fedotova. In this case, the Russian Constitutional Court underscored the importance of protecting children from information that could harm their health and moral and spiritual development. The law at issue prohibited “homosexual propaganda” near schools. In upholding the law, the Court concluded that prohibiting such propaganda near children could not violate constitutional rights. The Court’s conclusion appears to be in direct contrast with the views of the Committee on the Rights of the Child, when it assessed conformity of State practice with the Convention on the Rights of the Child, as well as with the opinion of UN human rights experts.^[24] Article 13 of the CRC protects the right of children to receive information and the Committee has interpreted this to include information about sexuality and sexual behaviour.^[25] For example, when the Committee considered Section 28 of the United Kingdom Local Government Act, it urged the State to repeal it.^[26] The Committee has also held that the non-discrimination provision guarantees the rights set forth in the CRC without discrimination on the ground of sexual orientation.^[27]

Although public morality is expressly a legitimate purpose justifying restriction of the rights to freedom of expression, peaceful assembly, and association in the ICCPR, courts have been alert to ensure that “public morality” does not mask prejudice. They have distinguished between a genuine public morality and one that merely reflects majority opinion. Most of the cases discussed in this chapter emphasise the important role these rights play in protecting minorities and that the expression of minority viewpoints benefits democratic societies. As the Human Rights Committee has noted, limits on rights must not violate the guarantees of equality and non-discrimination found in both international and domestic constitutional law.^[28]