Communicated on 28 January 2021 Published on 15 February 2021

THIRD SECTION

Application no. 16206/19 Yuliya Valeryevna SAVINOVSKIKH and Others against Russia lodged on 14 March 2019

STATEMENT OF FACTS

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first applicant, Yuliya Savinovskikh, is a Russian national, who at the material time resided in Yekaterinburg and currently resides in Manresa, Spain. The second and the third applicants are Russian nationals residing in Yekaterinburg.

The first applicant was born in 1977. According to the submissions, the applicant is a transgender man (female-to-male transgender person). He was born genetically female and his gender was registered as “female”. However, he currently identifies himself as male.

The second and the third applicants, Mr D.D and Mr K.K., are children, who were both born in 2012, and who ’ s biological parents were deprived of parental rights. They were placed in the public care facilities and then taken into the first applicant ’ s custody under a foster care agreement.

On 5 June 2014 the municipal social services in the Kirovskiy District of Yekaterinburg issued an order by which Mr D.D., the second applicant, was placed into the first applicant ’ s foster care. Mr D.D. ’ s biological parents were deprived of parental rights and he lived in a public care facility since the time he was born. He was HIV-positive and suffered from developmental delay and a form of cerebral and muscular dysfunction.

On 19 June 2014 the first applicant concluded an agreement with the municipal social services under which Mr D.D. was placed in his foster care and he gained custody of him.

On 23 December 2015 the municipal social services in Miass, Chelyabinsk Region granted the first applicant ’ s custody of Mr K.K, the third applicant. Mr K.K. ’ s biological parents were deprived of parental rights and he lived in a public care facility since the time he was born. He was born prematurely and subsequently diagnosed with cerebral palsy. One year after his birth he was granted disability status.

On 29 January 2016 the municipal social services in Ordzhonikidze District of Yekaterinburg issued an order by which Mr K.K. was placed into the first applicant ’ s foster care and he gained custody of him.

On 1 February 2016 the foster care agreement of 19 June 2014 was supplemented with additional agreement in respect of Mr. K.K. ’ s placement in the first applicant ’ s care.

At the time of the abovementioned proceedings the first applicant ’ s gender was recorded as “female”, he was married to Mr. E.S. and they had two biological children born in 2012 and 2013. The first applicant also has an adult daughter born in previous marriage.

According to the first applicant, on 3 July 2017 he was diagnosed with “transsexualism”. On 21 July 2017 he underwent a double mastectomy and all breast tissue was surgically removed. Around the same time the applicant created an account on a social network, where he presented himself as male.

On 24 August 2017 the municipal social services in Ordzhonikidze District of Yekaterinburg became aware of the first applicant ’ s surgery and found out that he posted some pictures of him on his page on the social network, where he presented himself as male.

On 27 August 2017 a social services official visited the first applicant ’ s apartment , where he resided with Mr D.D. and Mr K.K. During this visit the first applicant told the official that he was diagnosed with “transsexualism” and that he was going through gender transition. He further stated that he was planning to move to Spain with the children, where he already lodged an asylum claim. During that visit the official also found that sanitary conditions in the apartment were unsatisfactory and decided that the children should be temporary placed to a public care facility.

On 28 August 2017 the social services in Ordzhonikidze District of Yekaterinburg issued two orders in respect of the second and third applicants, by which the first applicant ’ s custody of them was terminated with reference to the children ’ s best interests.

According to the first applicant, on 30 August 2017 he was served with the above orders and requested to sign a friendly settlement in order to terminate the foster care agreement of 19 June 2014. The applicant refused to do so and on the same day Mr D.D. and Mr K.K were taken from the first applicant ’ s family and placed in a public care facility. The first applicant alleges that he has not seen the children since then.

On 5 September 2017 the social services attempted to institute criminal proceedings against the applicant, claiming that the first applicant and his husband did not duly perform their duties as custodians of Mr D.D. and Mr K.K. The investigation authorities conducted an inquiry and found the living conditions in the applicant ’ s apartment to be satisfactory and that the first applicant and his spouse performed their parental duties in accordance with the law. On 20 October 2017 the investigative authorities refused to institute criminal proceedings.

On 4 September 2017 the social services lodged a complaint with the Ordzhonikidzevskiy District Court of Yekaterinburg, requesting to terminate the foster care agreement of 19 June 2014, as supplemented on 1 February 2016. In their submissions they stated:

“The main reason for termination of the foster care agreement is [the first applicant ’ s] transsexualism, since the children were initially placed in a traditional family.”

The first applicant lodged a counter ‑ claim asking the courts to find the orders of 28 August 2017 unlawful and to restore his custodianship of Mr D.D. and Mr. K.K. He submitted that he had never wanted to undergo gender transition and that his account on social networks was of a purely artistic nature. He admitted that he was diagnosed with “transsexualism” but claimed that it was only a part of his personality, since he still performed a role of a “mother” and that was how the children perceived him. Regarding the double mastectomy, the applicant claimed, that it has not been a part of a gender transition and that he wanted to go through the surgery for personal reasons. He stated that there was no obligation to inform the social services about the surgery.

On 5 February 2018 the District Court held a hearing, during which it examined the first applicant ’ s medical records, the record of the visit of a social services official to the first applicant ’ s apartment on 27 August 2017, heard the parties and witnesses.

On the same day the District Court ordered to terminate the foster care agreement and dismissed the first applicant ’ s counter-claim. The court established that his diagnosis “transsexualism” was proven by the medical records and that he actually intended to go through gender transition with double mastectomy being part of it. It further stated that even though “transsexualism” is a psychiatric disorder, in itself it is not an obstacle for gaining custody and taking children in foster care. However, in the circumstances of the case, the first applicant ’ s diagnosis “transsexualism” was a sufficient reason to deprive him of custody. In the relevant part the text of the judgment reads as follows:

“According to the provisions of the Article 12 of Family Code of Russian Federation, in Russia only a man and a woman can be married. Registration of the same-sex marriages is prohibited. [The first applicant ’ s] identification as male, considering her being married to a man, her intent to adopt a social role, typical for persons of male gender, is in substance contrary to the principles of family law of our country, traditions and mentality of our society.”

The court also noted that according to the record drawn on the official ’ s visit to the first applicant ’ s apartment on 27 August 2017, the sanitary conditions of the apartment were unsatisfactory. The witnesses, who worked in a public care facility where Mr. K.K. was placed on 30 August 2017, submitted that upon his arrival Mr K.K had major gaps in his intellectual development. According to their testimony the foster family did not ensure the necessary educational activities.

The District Court found that the first applicant breached the provisions of the foster care agreement by failing to inform the social services about “significant circumstances”, such as the diagnosis, the surgery and creation of his social network page where he presented himself as male. The court considered these circumstances significant since they “affected the physical, spiritual, and moral development of the children”.

The first applicant lodged an appeal with the Sverdlovsk Regional Court. During an appeal hearing, he continued to refuse his intention to go through gender transition and added as evidence an expert panel report of 24 January 2018. This report concluded that the first applicant should be diagnosed with “Gender identity disorder, unspecified” according to ICM-10 F.64.9. In the view of the first applicant ’ s social adaptability, acceptance of a female social role and heterosexual relations, stable partnership, marriage and childbirth there had been no sufficient indicators for the diagnosis of “Transsexualism” (ICM-10 F.64.0). Further, the report indicated that the first applicant did not have any other disorder, which could be dangerous for the children ’ s life, health, and development.

On 15 May 2018 the first applicant ’ s appeal was dismissed. The Regional Court agreed with the trial court ’ s conclusions and reiterated that the decision to terminate the foster care agreement was based on 1) poor sanitary conditions in the apartment, 2) apparent lack of necessary attention to Mr K.K. ’ s intellectual development, 3) the first applicant ’ s failure to inform the social services about the “significant circumstances”. The court pointed out that the decision to terminate the foster care agreement was driven not by the applicant ’ s diagnosis “transsexualism”, but by the breach of the foster care agreement and a legal impossibility for same sex couples to be foster parents.

The first applicant ’ s subsequent cassation appeals were dismissed on 5 September 2018 by the Sverdlovsk Regional Court and on 31 October 2018 by the Supreme Court of the Russian Federation.

COMPLAINTS

The applicants complain under Article 8 of the Convention alleging that the domestic courts ’ decision to terminate the foster care agreement and removal of Mr K.K. and Mr D.D. from the first applicant ’ s family violated the applicants ’ right to respect for family life.

The first applicant also raises a complaint under Article 14 in conjunction with Article 8 of the Convention, arguing that the authorities ’ decision to deprive him of custody of the second and the third applicants was based solely on his gender identity.

QUESTIONS TO THE PARTIES

1 . Has there been a violation of the applicants ’ rights guaranteed by Article 8 of the Convention? In particular,

( a) Did the relationship between the applicants constitute “family life” within the meaning of Article 8 of the Convention?

( b) If so, has there been a violation of the applicants ’ rights to respect for their family life, contrary to Article 8 of the Convention? In particular, was the termination of the first applicant ’ s foster care and custody over the second and the third applicants necessary in a democratic society and proportionate to the aim pursued?

( c) Did the domestic courts in taking the decision to terminate the first applicant ’ s foster care and custody strike a proper balance between the legitimate aim pursued and the interests of all the applicants, notably the best interest of the children? Were the judicial decisions based on reliable and sufficient evidence?

2. Has the first applicant suffered discrimination on the ground of his gender identity and transition, contrary to Article 14 of the Convention in conjunction with Article 8?

In particular, has the first applicant been subjected to a difference in treatment in connection with his gender identity and transition? If so, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification?

APPENDIX

List of applicants

No.

Applicant ’ s Name

Birth year

Nationality

Place of residence

1Yuliya Valeryevna SAVINOVSKIKH

1977Russian

Manresa, Spain

2D.D.

2012Russian

Yekaterinburg, Russia

3K.K.

2012Russian

Yekaterinburg, Russia