IN THE EUROPEAN COURT OF HUMAN RIGHTS
Application no. 61435/19
Case of Macaté v. Lithuania

THIRD PARTY INTERVENTION

Professor David Kaye,
International Justice Clinic, University of California, Irvine, School of Law,
ARTICLE 19: Global Campaign for Free Expression, andEuropean Region of the International Lesbian, Gay, Bisexual, Trans and Intersex
Association

A. INTRODUCTION
1. This intervention is submitted jointly by Professor David Kaye, the European Region of
the International Lesbian, Gay, Bisexual, Trans and Intersex Association (“ILGA-Europe”), andARTICLE 19: Global Campaign for Free Expression (“ARTICLE 19,” jointly the Interveners),
based on the decision of the Court from 7 December 2021.
2. In the present case the Court is asked to evaluate whether the late Applicant’s freedom of
expression, protected under Article 10 of the European Convention on Human Rights (“ECHR”),
was violated when her book containing fairy tales that depicted same-sex couples was marked as“harmful”, referencing the public policy of protecting children. This case may best be understoodwithin the context of threats to the freedom of expression on the basis of sexual orientation andgender identity, or otherwise against LGBT persons, in contravention of international human rights
law. The human rights mechanisms of the UN system have increasingly raised concerns about arise in anti-LGBT legislation and discriminatory treatment of LGBT persons inconsistent withinternational law.1
3. The case also raises serious questions about the freedom of expression of artists andchildren’s access to information and ideas of all kinds. The key issues relate to the degree to whicha publisher – together with the state authorities – can limit or otherwise negatively impact
distribution of published work targeting certain age groups and whether authors may seek redress
against such limitations based on discriminatory grounds. The Court’s judgment on these issues islikely to be relevant and influential to the interpretation and application of international human
1 See, for instance, Inaugural Report of the UN Independent Expert on protection against violence and discrimination based on

sexual orientation and gender identity, Victor Madrigal-Borloz, A/HRC/38/43, ¶ 38 (11 May 2018); Report of the UN Independent
Expert on protection against violence and discrimination based on sexual orientation and gender identity, Victor Madrigal-Borloz
on Social Inclusion, A/74/181, ¶ 34 (17 July 2019) [hereinafter “Report on Social Inclusion”]; Report of the UN Independent Expert
on protection against violence and discrimination based on sexual orientation and gender identity, Victor Madrigal-Borloz on
Gender (Part II): Practices of Exclusion, A/76/152, ¶ 7 (15 July 2021) [hereinafter “Report on Gender (Part II): Practices of
Exclusion”].

1rights standards on the right to freedom of expression under the ECHR and beyond.
4. In order to assist the Court in its deliberation, we use this intervention to answer thefollowing questions: (1) whether States and private parties can impose limitations on distributionof artistic work, through “warnings” or otherwise, and whether such limitations are compatible
with the protection of the right to freedom of expression; (2) whether and if so to what extent suchwarnings may be justified under human rights law for the protection of children; and (3) whether
limitations on freedom of expression that have a discriminatory intent and impact on members ofprotected groups, in particular LGBT members, are permissible under international human rights
law.
B. THE LEGAL STANDARDS
5. The right to freedom of opinion and expression, protected under Article 10 of the ECHR
and Article 19 of the ICCPR, is a robustly articulated right, facilitating not only human curiosityand learning (seeking and receiving) and sharing (imparting), but also framing the object ofprotection as broadly as possible (information and ideas of all kinds).2 Freedom of artistic
expression — in all its mediums, including books, movies, paintings, songs, among many others— is a part of freedom of expression.3 Indeed, the enjoyment of artistic expression “is a value in
itself” according to this Court. 4 Echoing the approach of the UN Human Rights Committee –themonitoring body of the ICCPR–5 the UN Special Rapporteur in the field of cultural rights has
stated that the right to freedom of artistic expression includes the rights to freely contribute to anddisseminate artistic expression and creation and also to freely experience, access and enjoy artistic
expression.6 Consequently, any restriction on artistic expression must also meet the same threepart test from Article 10(2) of the ECHR and Article 19(3) of the ICCPR.
6. Restrictions of freedom of expression take various forms and with varying degrees ofseverity, including criminalization of speech on a particular topic, 7 removal of an artistic work

2 Research Report of the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion andExpression, David Kaye on Artistic Expression, A/HRC/44/49/Add.2 (24 July 2020) [hereinafter “Research Report on Artistic
Expression”].
3 Research Report on Artistic Expression, ¶¶ 4-6. See also the Council of Europe, Steering Committee for Culture, Heritage andLandscape, Manifesto on the Freedom of Expression of Arts and Culture in the Digital Era, (10 Nov. 2020).
4 ECtHR, Marta Jelševar and others v. Slovenia, Application no. 47318/07, 11 March 2014. See also Council of Europe, Steering
Committee for Culture, Heritage and Landscape, Manifesto on the Freedom of Expression of Arts and Culture in the Digital Era,
(10 Nov. 2020).
5 Cfr. Research Report on Artistic Expression. Human Rights Committee, General Comment No. 34 on the right to freedom of
expression, CCPR/C/GC/34, (12 September 2011), ¶13-14 [hereinafter “General Comment 34”]; See, e.g., Human Rights
Committee, Mavlonov v. Uzbekistan, 29 April 2009, Communication No. 1334/2004, CCPR/C/95/D/1334/2004, ¶8.4. See also,
Toby Mendel, Restricting Freedom of Expression: Standards and Principles, March 2010.
6Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed on the right to freedom of artistic expression andcreativity, A/HRC/23/34, 14 March 2013, ¶85 [hereinafter “Report on artistic expression and creativity”]. See also, Communication
to Egypt. EGY 9/2015.19 August 2015.
7 The Belarus Free Theatre, an international underground theatre company in Belarus led by artistic directors in exile, use art toaddress a variety of social issues, including LGBT rights, and bring about systemic change. Their members have been arrested and‘blacklisted’- restricting them from performing in official art institutions. Research Report on Artistic Expression, ¶32.

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from circulation8 or its outright censorship,9 restriction of online content10, the imposition oflabels 11 or disclaimers to forms of artistic expression. Each ultimately aims to limit the creationand dissemination of artistic work. As the UN Special Rapporteur in the field of Cultural Rights
has stated, restrictions are regularly imposed at various stages of the artistic creation, “from thedevelopment of the idea through to production, performance, publication and distribution.” 12 She
also stated that regulations, understood as “the disinterested classification of content according to
publicly available guidelines”13, may limit freedom of expression “and may be acceptable only tothe extent that they fully comply with international standards.” 14 There is also an organic
relationship between the artist and the public and States have an obligation to ensure enabling
environments in which this relationship can be free and flourish. 15
7. Article 10(2) of the ECHR and Article 19(3) of the ICCPR provide narrow and strict bases
upon which a State may limit the freedom of expression. Any restriction to be lawful must be
provided by law and necessary and proportionate to protect a legitimate interest. A government
imposing a restriction or some form of burden on expression must demonstrate that the measure
adopted meets the tripartite test of legality, legitimacy, and proportionality.
8. Restrictions to freedom of expression “must also themselves be compatible with theprovisions, aims and objectives of the [ICCPR]. Laws must not violate the non-discrimination
provisions of the Covenant.”16 The principles of equality and non-discrimination are part of thefoundations of the rule of law and human rights (Article 2 and 26 of the ICCPR and Article14 ofand Protocol 12 to the ECHR). As the UN Human Rights Committee has emphasized, restriction
based on discriminatory grounds cannot be said to constitute one of the enumerated legitimate
grounds for restrictions to freedom of expression. 17 The UN High Commissioner for Human
Rights encouraged States to adopt an expansive approach to their anti-discrimination policies andenact comprehensive anti-discrimination legislation that includes sexual orientation and gender
identity among protected grounds. 18 The UN Special Rapporteur for freedom expression observedin his report on artistic freedom of expression that discrimination is often the underlying reason
for unlawful restrictions, noting that“[m]inority groups are particularly vulnerable to restrictions on artistic expression because theart will frequently be challenged solely for its existence and not any alleged challenge to state
8 In Thailand, the Third Committee of Film and Video Censorship Board of the Ministry of Culture issued a banning orderprohibiting the distribution of the film Shakespeare Must Die. The Board deemed that the movie “has content that causes disunity
among the people of the nation.” Research Report on Artistic Expression, ¶27. Communication to Thailand, THA 2/2013, 15 March
2013.
9 In Egypt the Ministry of Culture has the authority to approve, deny or revoke permits required for artistic works and may oversee
both the creation of an artwork and any future developments or change by its author. Communication to Egypt, OL EGY 9/2015,19 August 2015.
10 Research Report on Artistic Expression, ¶41-47.
11 The certification system in Turkey has been widely used to limit the circulation of films according to their consistency withpublic order, moral values, spiritual and physical well-being of youth, human dignity and copyright. Research Report on Artistic
Expression, ¶ 38.
12 Report on artistic expression and creativity, ¶53.
13 2010 Arts Community Position Paper on Censorship and Regulation, Singapore, p. 3. Cited in Report on artistic expression andcreativity, ¶62.
14 Report on artistic expression and creativity, ¶62-64.
15 IACtHR., Case of “The Last Temptation of Christ” (Olmedo-Bustos et al.) v. Chile. February 5, 2001. Series C No. 73. ¶65.
16
General Comment 34, ¶ 26.
17 General Comment 34, ¶ 26, 32.
18 See Report of the Office of the United Nations High Commissioner for Human Rights on Discrimination and violence against
individuals based on their sexual orientation and gender identity, (4 May 2015) A/HRC/29/23.

3authority or public outcry. Women and members of the LGBTI community are especiallytargeted.”19
9. The right to freedom of expression is enjoyed by “everyone,” not limited by any criteria,
including (if not especially) children and members of historically discriminated groups. The
Convention on the Rights of the Child (“CRC”) recognizes that it is unacceptable to use theimmaturity of children as a justification for depriving them of rights that would otherwise only beenjoyed by adults.20 Children’s rights are often restricted under the guise of promoting public
morals, traditional values, and family. Given that Article 13 of the CRC closely follows thewording of Article 19 of the ICCPR, any restriction to freedom of expression and access to
information should also follow the three-part test of legality, legitimacy and necessity andproportionality (as described above). 21
C. SUBMISSION
Compatibility of limitations of distribution of artistic work – through “warnings” orotherwise – with international freedom of expression standards
10. Labels on books are commonly used to give information to potential readers and aresometimes referred to as a “viewpoint-neutral directional aid.”22 Labels may therefore not always
be intended to persuade readers of a particular point of view. An example of a label could be onethat depicts the genre, such as romance, fiction, or mystery. By contrast, a “prejudicial label would
be a label that tries to persuade or establish an institutional preference for something.” 23
11. Labels and warnings signaling that a book may be ‘harmful’ in some sense can cast anegative light on the work regardless of its literary merit or the author’s intent. 24 Such labeling
may also restrict access to the work, as it may hinder its availability in bookstores and libraries,
and deter buyers from acquiring it wherever it is available. 25 A study conducted by the nongovernmental organization PEN America found that “[m]any librarians, teachers, and school
administrators freely admit that they decline to order certain books out of fear that someone mightfind the content objectionable”26, in particular books that are written “by or are about people ofcolor, LGBTQ people, and/or disabled people” since these are the ones that have been challenged
19 Research Report on Artistic Expression, ¶ 33.
20 Report of the special rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La

Rue on the right of the child to freedom of expression, (Aug. 21, 2014) A/69/335, ¶ 2 [hereinafter “Report on the right of the childto freedom of expression”].
21 Committee on the Rights of the Child, General comment No. 25 (2021) on children’s rights in relation to the digital environment,
CRC/C/GC/25 (2 March 2021) ¶ 59. See also, Report on the right of the child to freedom of expression, ¶ 23.
22 American Library Association, Labeling and Rating Systems Q & A, https://www.ala.org/advocacy/intfreedom/labelingratingqa
23 Id.
24The US National Council of Teachers of English has explained that the process of rating casts “a negative light on listed books
regardless of their literary worth [and] defers to a minority who object to a book -- often for random, personal, or ideologicalreasons -- rather than the thousands who have read, taught, enjoyed, and benefitted from the book. More importantly, ‘red-flagging’privileges the concerns of would-be censors over the professional judgment of teachers and librarians.’” National Coalition Against
Censorship, Letter to Superintendent Lane, (1 Aug 2016), https://ncac.org/wp-content/uploads/2016/08/ChesterfieldLetter.pdf
25 Pen America found that the “current patterns of challenges to children’s books reveals that a large portion relate to children’s
and young adult books that are either authored by or are about people of color, LGBTQ people, and/or disabled people (referred toin this report as “diverse books”). And even if a particular challenge fails, teachers and librarians are aware that diverse books may
draw unwanted scrutiny, prompting some of them to avoid assigning these books or putting them into library circulation in the firstplace.” PEN America, Missing From The Shelf: Book Challenges and Lack of Diversity in Children's Literature (2016),
https://pen.org/sites/default/files/PEN_childrens_lit_report_FINAL_online.pdf
26 PEN America, Missing From The Shelf: Book Challenges and Lack of Diversity in Children's Literature (2016).

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more frequently.27 A label would reinforce such fears.
12. The possibility of having the artistic expression labeled as “harmful” is likely to have asignificant chilling effect on freedom of expression for at least two reasons. Firstly, it potentiallyprovides a powerful – if somewhat uncertain – basis for public authorities to limit the publicationof controversial material (see more details below). Secondly, the research, writing or production
and publication of a book is a major undertaking. Faced with the threat that a publication on topics
touching on “controversial” areas may be subject to such restrictions, writers, producers or
publishers are likely to shy away from such topics and concentrate on less potentially problematic
areas. Even outside the scope of publications for children, with the threat that such warming labels
could be attached to any form of publication, The Color Purple by Alice Walker, Orlando by
Virginia Woolf, Lolita by Vladimir Nabokov or The Picture of Dorian Gray by Oscar Wilde may
not have been published.
13. To respond to the first question, State and private parties may impose labels and “warnings”
on artistic work only in accordance with the rules of international human rights law. Because
imposed labels compel a creator to carry expression and limit the possibility of the work’s
dissemination, they must be treated carefully and subject to the strictest scrutiny of the three-part
test under Article 10(2) of the ECHR and Article 19(3) of the ICCPR. It is conceivable that, withappropriate evidence, a state may demonstrate that a label communicating that a work contains
explicit depictions of realistic violence may be permissible in light of the social and cognitive
develop of children under a certain age. By contrast, a label expressing a “warning” concerning
members of groups protected against discrimination under international law should be suspect on
its face, given the illegitimacy of discriminatory restrictions on expression. Such a label promotes
a discriminatory “concern” based on stereotypes of gender sexuality deeply-rooted in cultural
norms and beliefs about the concept of the “traditional” family 28 or “morals”. Labels and warnings
on books or other forms of expression may constitute a burden on the freedom expression thatmust be assessed according to the standards of international human rights law.
Justification of warnings under human rights law for the protection of children
14. With regards to the second question, the protection of the rights of children is a legitimate
aim to restrict the distribution of artistic work. It has been evident, however, that states will often
argue that protection of children demands limitations on access to information and ideas. The
Special Rapporteur on freedom of expression has directly addressed this point, concluding that
there must be a demonstrated necessity in each case, just as with all restrictions on the freedom of
expression:“Child protection arguments are part of a new pattern in which children are increasingly
used to justify restrictions not only on their access to information, but also on the rights ofadults. In many cases, the restrictions are rooted in a genuine, well-meaning desire toprotect children from harmful information, while in others they have been used to defend

27 In the context of the study, a challenge is a “a formal, written complaint, filed with a library or school requesting that materials

be removed because of content or appropriateness.” PEN America, Missing From The Shelf: Book Challenges and Lack of Diversity
in Children's Literature (2016).
28 Inaugural Report of the UN Independent Expert on protection against violence and discrimination based on sexual orientationand gender identity, Victor Madrigal-Borloz, A/HRC/38/43, ¶ 45 (11 May 2018).

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discrimination and censorship.”29
15. Additionally, the Commissioner for Human Rights of the Council of Europe has clearlystated “[t]here is no evidence that dissemination of information advocating a positive attitude
towards LGBTI people would adversely affect children. Rather, it is in the best interests of children
to be informed about sexuality and gender diversity.” 30 For its part, the European Commission for
Democracy through Law (“Venice Commission”) has stressed that evoking the protection ofchildren as an argument to block children from accessing information about LGBTI people fails
to pass the necessity and proportionality test required by this Court.31
16. Children, like adults, have the right to engage with various types of perspectives in orderto form their own views and beliefs. As the UN Special Rapporteur on freedom of expression has
noted, the ability to develop opinions, as well as to express them clearly, stems from a learning
process that begins in early childhood and requires appropriate encouragement and respect in order
to completely develop. 32 The UN Committee on the Rights of the Child has stated that children
need access to information in formats that are appropriate to their age and capacities on all issuesof concern to them, like information related to their rights.33 Additionally, international law has
recognized that the right to freedom of expression regarding children is extended as they matureand develop their process of personal autonomy. 34 In this sense, “freedom of expression has been
regarded as having a developmental aspect, since its aim is to enable children to develop theirminds and themselves in society with others and grow into citizens participating in public life.” 35Consequently, restriction on freedom of expression should take children’s “childness” into
account.
17. From a comparative perspective, the Interveners also note that even in cases when apublication of a book would cause a psychological harm to a child concerned by the content of thisparticular book, the Supreme Court of the United Kingdom found that there was no precedent for
an order preventing a person from publishing a book for fear of its causing psychiatric harm to avulnerable person. In OPO v MLA,36 the Supreme Court discharged an injunction that prevented
the publication of an autobiographical book. For the Court prohibiting the publication of a bookfor the potential effects it can have on one potential reader infringes too greatly on the freedom of
expression of an author. The Court ruled that “the only proper conclusion is that there is every
justification for the publication. […] Of course vulnerable children need to be protected as far as
reasonably practicable from exposure to material which would harm them, but the right way of
doing so is not to expand Wilkinson v Downton to ban the publication of a work of general interest.”
18. In Sund v. City of Wichita Falls a Federal Judge in Texas, United States struck down a local
29 Report on the right of the child to freedom of expression, ¶ 52.
30 Council of Europe. Human Rights Commissioner. LGBTI children have the right to safety and equality (2 Oct. 2014).
31 European Commission for Democracy through Law. Opinion on the issue of the Prohibition of so-called “propaganda ofhomosexuality” in the light of recent legislation in some member states of the Council of Europe. Opinion 707 / 2012. CDLAD(2013)022 (18 June 2013). Cited in Council of Europe. Human Rights Commissioner. LGBTI children have the right to safety
and equality (2 Oct. 2014).
32 Report on the right of the child to freedom of expression, ¶ 83.
33
Committee on the Rights of the Child, General Comment No. 12 (2009) on the right of the child to be heard, CRC/C/GC/12(`20 July 2009) ¶ 82.
34

IACHR, Childhood, Freedom of Expression, and the Media OEA/SER.L/V/II CIDH/RELE/INF.23/19 (Feb.
2019)¶ 18.
35 Report on the right of the child to freedom of expression, ¶ 13.
36

Supreme Court of the United Kingdom. James Rhodes (Appellant) v OPO (by his litigation friend BHM) and another(Respondents). [2015]UKSC 32 (20 May 2015).

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law that restricted public library access to two books about gay parenting. The Court found thatthe policy, “both on its face and as applied to the removal of Heather Has Two Mommies andDaddy's Roommate from the children's area of the Library to the adult section” 37 violated federal
and state constitutional rights to receive information. The Court also found that “the resolution andthe book removals burden fully protected speech on the basis of content and viewpoint and they
therefore cannot stand.” 38
Comparative standards address warnings or restrictions on distribution for certain age
groups on the basis of gender and sexual orientation.
19. To answer the third question, singling out and labeling content as “harmful to children”
because it has content on or about LGBT people constitutes a discriminatory purpose. In otherwords, given the discriminatory basis of labeling content as harmful merely because it has
representations of LGBT people, such labels may not be seen as aiming to promote a legitimate
purpose under Article 10(2) of the ECHR or Article 19(3) of the ICCPR. Many States attempt tojustify restrictions on freedom of expression by evoking public morals, but the underlying
discriminatory intent renders the restriction unlawful. 39 In such cases, UN Special Rapporteurs andthis Court refused to allow States to hide behind the veil of public morals when engaging in
discriminatory practices. 40 As the UN Special Rapporteur on the promotion and protection of theright to freedom on opinion and expression has pointed out, there is an increased “weaponizationof public morals” that is used to silence women and sexual minorities. 41 Such weaponization isrooted in discrimination.
20. The rise in suppression of freedom of expression on the grounds of “traditional values” isalso connected to discrimination against LGBT communities. A group of UN experts released astatement that“[b]eing ‘highly subjective and dependent on societal power structure’, traditional values canbe easily misused as a tool for the repression of fundamental human rights. They are often usedto ‘justify’ negation of the rights of already marginalized groups who have historically been
excluded from positions of power to shape public opinion and influence decision-making
processes.”42
21. The UN Special Rapporteur on the promotion and protection of the right to freedom of
opinion and expression has stated that “[m]any countries criminalize […] LGBTQ+ information
on grounds of morals, traditional values and child protection. Evidence shows that such an
approach fosters intolerance, stigmatization and violence, and deprives people from access toaccurate information.”43 Recently, the European Commission addressed the decision of the
37
38

U.S. District Court for the Northern District of Texas - 121 F. Supp. 2d 530 (N.D. Tex. 2000) (20 Sept 2000).
U.S. District Court for the Northern District of Texas - 121 F. Supp. 2d 530 (N.D. Tex. 2000) (20 Sept 2000).

referenced public morals when it adopted its “homosexual propaganda” law. Report of the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Irene Khan on Gender justice andfreedom of expression, (30 July 2021) A/76/258, ¶28 [hereinafter “Report on Gender justice and freedom of expression”.] Similarly,
the Government of Poland referenced “traditional family norms” when adopting “LGBT-free zone” legislation, putting restrictions
on Pride marches, and proposing a bill that would criminalize sexuality education in schools. See generally AL POL 1/2020.
40 See id; Bayev and Others v. Russia (EctHR, 2017).
41
See generally Report on Gender justice and freedom of expression.
42 “Human Rights are essential tools for an effective intercultural dialogue,” statement by a group of United Nations experts on theworld Day on Cultural Diversity for Dialogue and Development (21 May 2010).
43 Report on Gender justice and freedom of expression, ¶27.
39 For instance, Russia

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Hungarian Consumer Protection Authority that required the publisher of a children’s book to
include a disclaimer that the book portrays forms of “behaviour deviating from traditional genderroles” because it included LGBTI people in it. The Commission considered “that by imposing an
obligation to provide information on a divergence from ‘traditional gender roles’, Hungary restricts
the freedom of expression of authors and book publishers […] [and] discriminates on grounds ofsexual orientation in an unjustified way […].”44
22. Given the discriminatory intent of anti-LGBT labels, such warnings fail to meet the threepart test of Article 10(2) of ECHR and Article 19(3) of the ICCPR. Indeed, one need not evenreach the necessity test, given that it can never be necessary for a law to discriminate against amember or members of a group protected under international human rights law. Certainly, when
governments add labels and warnings to content by and about LGBT people, they contribute to
exclusionary policies incompatible with human rights norms.45 The UN Independent expert onprotection against violence and discrimination based on sexual orientation and gender identity has
stated that“negative portrayals and/or the invisibility of sexual and gender diversity in educational
materials enable exclusion, as such things can contribute to feelings of isolation and low selfesteem for LGBT students and foster discriminatory attitudes among peers […] The adoptionof comprehensive sexuality education that is inclusive of sexual and gender diversity cansignificantly reduce physical and psychological health risks for LGBT and gender-diverse
youth,”46
Affixing warning labels to articles, stories, books, and movies that shed light on the experiencesof the LGBT community allows for continuous exclusion of LGBT people from public life andimagination.
23. Warnings labeling content as harmful because it has content on or about LGBT are not
only inconsistent with the anti-discrimination norms at the heart of human rights law but they cancontribute to other forms of discrimination faced by the LGBT community. Indeed, the UN
Independent Expert on the protection against violence and discrimination based on sexual
orientation and gender identity has stated that “exclusionary narratives exploit preconceptions,stigma and prejudice to create an atmosphere of panic and moral concern and create the risk ofperpetuating violence and discrimination.” 47 When such a label is added to content by and about
LGBT people, it allows for further alienation and isolation of LGBT people and serves as amanifestation of institutional “LGBTIphobia.” 48
24. UN mechanisms have noted that, when governments adopt laws that explicitly or implicitly
limit expression on or about LGBT people, they contribute to discrimination based on sexual
orientation and gender identity. The UN Independent expert on protection against violence anddiscrimination based on sexual orientation and gender identity – a post created because of the
spread of anti-LGBT legislation and violence – has stated that several governments“criminalize statements, publications or actions that discuss or refer to the identity or
44 European Commission, December infringements package: key decisions (2 Dec. 2021).
45 See generally OHCHR, “Combatting discrimination based on sexual orientation and gender identity.”
46

Report on Social Inclusion, ¶6 and 8.

47 Report on Gender (Part II): Practices of Exclusion, ¶ 77 (15 July 2021).
48 ILGA-Europe, ILGA-Europe’s key demands for the recognition of diverse families, 2014, at 4 [hereinafter “Key demands for therecognition of diverse families.”], at 4.

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expression of lesbian, gay, bisexual, trans and gender non-conforming persons, often referred
to as ‘gay propaganda’ […] These laws tend to exacerbate police abuse and harassment,
extortion and acts of violence against people based on their perceived or real sexual orientationor gender identity, drawing them into the criminal justice system, sometimes leading to further
incidents of discrimination and violence.”49
25. Several human rights organizations, including ILGA-Europe, have also highlighted “theheightened vulnerability to discrimination” that members of the LGBT community face. 50 Despite
progress in the area of recognizing and protecting LGBT and women’s rights, many governments
still contribute to the problems of stigmatization, discrimination, and unequal treatment thatlabeling reinforces.51
26. Finally, labels and warnings signaling content discussing or addressing diverse sexual
orientation experiences as harmful not only restrict expression because authors who want to writefor young children must avoid content about LGBT people, but the warnings also limit children’saccess to information. As previously mentioned, school librarians, teachers and parents – among
others – might be dissuaded from acquiring books that are labeled as harmful to children, therefore
limiting children’s access to a wide variety of information just because it refers to LGBT people.

D. CONCLUSION
27. The following conclusions may be drawn based on the above legal analysis:a. Adding labels and warnings to content by and about LGBT people involves
significant threats to freedom of expression and must be subjected to rigorous
scrutiny under Article 10(2) requirements;b. Protection of the rights of children and public morals is often used as a pretext fordiscrimination against members of the LGBT community and as justification for
disproportionate restrictions on freedom of expression.
28. Given the rise in anti-LGBT legislation and practices worldwide, the current case presents
the Court with a valuable opportunity to further address the ways in which discriminatory warninglabels interfere with the right to freedom of expression. In so doing, the Interveners urge the Court
to take into account:a. The detrimental effects of discriminatory warning labels on the effective exerciseof rights under Article 10 of the ECHR;
b. How discriminatory labels amount to discrimination on the grounds of sexual
orientation, contrary to Article 14 of the Convention read in conjunction with
Article 10.
29. This amicus filing has shown why discriminatory warning labels are a serious interference
49 Id, ¶ 38.

ILGA-Europe, ILGA-Europe’s key demands for the recognition of diverse families, 2014, at 4 [hereinafter “Key demands for therecognition of diverse families.”].
51 Report of the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender
identity, Victor Madrigal-Borloz on Gender Theory, A/HRC/47/27 ¶ 3-12 (3 June 2021).
50

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with the rights under Article 10 of the ECHR and consequently how this leads to the applicationof a strict standard of review in the assessment of the legitimate aim, legality, and necessity andproportionality of the restriction.
Yours sincerely,

Arpi Avetisyan
Head of Litigation
ILGA-Europe

Barbora Bukovska
Senior Director for Law and Policy
ARTICLE 19

David KayeClinic Professor of Law
International Justice Clinic, University of California, Irvine School of Law

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