On April 4, 2024, the Georgian Dream initiated a homophobic legislative amendment project draft that, alongside restricting personal and family life for LGBT individuals, includes provisions for censorship and restrictions on assembly and expression.

The constitutional law "on the Protection of Family Values and Minors" consists of eight points, which stipulate the following[1]:

• Legislation will allow for the regulation of marriage-like relationships only if they involve the union of one genetic male and one genetic female person, both not younger than 18 years of age.
• Adoption of minors, or having them in foster care, will be permissible only by married couples, or heterosexual individuals, in accordance with the Constitution and laws of Georgia.
• Any type of medical intervention related to sex change will be prohibited.
• Documents issued by the state authorities or local government will only indicate `female` or `male` in gender category, and this information shall correspond to the genetic data of the individual.
• Any decision by public authority or private person that directly or indirectly restricts the use of gender-specific terms will be annulled.
• Public assemblies that promote same-sex families or intimate relationships, incest, adoption or foster care of minors by same-sex couples or non-heterosexual individuals, also, medical interventions related to sex change, or the non-use of gender-specific terms, shall be prohibited.
• Distribution of works, programmes, or other materials promoting same-sex family or intimate relationships, incest, adoption or foster care of minors by same-sex couples or non-heterosexual individuals, medical interventions related to sex change, or the non-use of gender-specific terms will be prohibited.
• In educational institutions, both in public or private, it will be banned to provide information in the educational process that promotes same-sex family or intimate relationships, incest, adoption or foster care of minors by same-sex couples or non-heterosexual individuals, medical interventions related to sex change, or the non-use of gender-specific terms.

The first five points of the proposed law target conditions against a person's identity and private life, while the last three points are related to prohibitions related to assembly and information dissemination.

The purpose of this document is to evaluate the legislative initiative proposed by the government from the perspective of freedom of expression. Considering the dynamics surrounding the discussions of the draft law, the Social Justice Center will also evaluate this bill from the perspectives of personal and family life and the right to education.

1. Justification of the Bill and Evaluations Made During Public Discussions

The explanatory note of the bill states that the propaganda of explicit and intentional disregard for family values has an intensive and growing nature internationally. It also claims that this trend has increased significantly in Georgia in recent years. According to the initiators of the constitutional law project, it is necessary to strengthen mechanisms for protecting family values and the best interests of minors and to eliminate the risks associated with future propaganda of polygamy and incest[2].

On the one hand, the explanatory note of the law emphasizes that: “The basic rights of every person are recognized and protected by the Constitution of Georgia and other legislative acts of Georgia, regardless of the person’s lifestyle. The presented constitutional law project does not aim to disregard any of these basic rights.”[3] However, on the other hand, it is clear that the initiated bill is inherently contradictory to the constitutional guarantees that explicitly establish the principles of freedom of expression and the inadmissibility of censorship.

Additionally, it must be noted that alongside the proposed legislative changes, the ruling party is conducting public discussions on constitutional changes "On the Protection of Family Values and Minors" in various regions of Georgia. The government is trying to convince the public that without constitutional changes, the concepts of man and woman, gender, mother and father, and generally, Georgian identity, are under threat.

During public discussions, members of the ruling party not only make openly homophobic statements but also unconstitutional ones. For example:

On April 22 in Kutaisi, during a public discussion, Anri Okhanashvili, a member of Georgian Dream and the chairman of the Legal Issues Committee of the Parliament of Georgia, stated that after the enactment of the bill, it will be necessary to evaluate whether a particular work serves LGBT propaganda. "The relevant service will be the evaluator," Okhanashvili said[4].

The leader of the majority, Mamuka Mdinaradze, says: "The state itself will determine which works are considered as such... It may be instructed to remove the part containing direct propaganda from relevant distributing film studios or televisions, so the film itself is not removed from the screens, but this part is."[5]

On April 23, during a public discussion in Ambrolauri, Mamuka Mdinaradze noted that: "When today children are shown animated films where the central theme is that one cannot be happy without following such a lifestyle, this is something unimaginable... We must resist the propaganda and imposition of non-traditional lifestyles. Everyone has the right to live as they want, but everyone should stop imposing different lifestyles."[6]

Additionally, according to Tengiz Sharmanashvili, a member of the Georgian Dream faction: "Propaganda is propaganda. If you have Mein Kampf at home, no one in Germany will arrest you. That’s your business, but come out and start quoting Mein Kampf in public, and the police will immediately handcuff you. In the Soviet Union, if you had banned literature, they would come and arrest you. We’re not talking about what you have, have whatever you want. Just, no one will allow you to come out and start propagandizing these ideas to the public."[7]

As the statements of the parliament members show, the ruling political party plans to establish additional legal mechanisms alongside the adoption of the constitutional law, which will impose censorship on artistic, literary, educational, and other products, and control the content, opinions, and ideas. It is important to note that the law will apply not only to LGBT individuals and their supporters but also to individuals, organizations, and institutions that share and express non-heteronormative views.

2. Compliance of the Proposed Constitutional Law with the Constitution of Georgia

Article 17, Paragraph 1 of the Constitution of Georgia reinforces the freedom of thought and expression and establishes that: “Persecution of a person for their opinion or expression is not permissible.” Additionally, Paragraph 3 of the same article declares censorship inadmissible.

According to a precedent decision by the Constitutional Court: “Every person is unique, unrepeatable, and different, which creates the opportunity for diversity and, consequently, progress. Therefore, it is impossible to confine and exhaustively identify opinions or expressions or to define terminology that is acceptable to the entire society. It is even more challenging to artificially agree on such opinions or obligate unconditional acceptance, resulting in declaring everything else beyond the law. [...] Therefore, the state does not have the authority to categorize opinions as ‘correct’ or ‘incorrect,’ ‘desirable’ or ‘undesirable,’ and other such classifications. If a person cannot say what they think or is forced to say something they do not agree with, this insults the fundamental foundation of human rights – their dignity.”[8]

In the same decision, the Constitutional Court states:

“Generally, speech should only be subject to judicial intervention in extreme cases when it is objectively necessary. Freedom of expression should not be restricted through judicial means simply because we disagree with, fear, hate, or consider it incompatible with societal morals or traditions. For the viability of freedom of expression and, therefore, democracy, special caution should be exercised in the legal treatment of opinions that provoke such negative attitudes or responses. The best way to balance freedom of expression is through more expression – because any opinion or statement you disagree with, dislike, or consider untrue can be countered with opposing opinions and ideas that you share, like, or believe to be true.”[9]

The established precedent by the Constitutional Court of Georgia indicates that Article 17, Paragraph 1, Sentence 1, and Paragraph 2 protect the right to freely receive and disseminate information without content-based filtration[10]. It also indicates that restricting freedom of expression by introducing content regulation is one of the most severe forms of interference with this right. Mandating what kind of opinions/information can or cannot be disseminated essentially installs an “informational filter” on people's minds.[11]

As the leaders of the ruling party and the parliamentary majority argue, the enactment of the bill will legally sanction the content regulation of material broadcasted by media outlets and publishers through judicial means. They also plan to regulate and evaluate the content of any transmitted information from an ethical and moral perspective. Furthermore, representatives of Georgian Dream announce the establishment of an “evaluation service” that will assess the compliance of materials with the law. Delegating the comprehensive authority of content regulation, not as a technical issue but as an entire competence, to a specific service contradicts the formal requirements of the Constitution.

Beyond restricting freedom of expression and assembly, the presented bill aims to discriminate against the LGBT group, making the proposed legislative initiative incompatible with the principle of equality.

It is unequivocal that the initiated bill is discriminatory. It establishes different treatment for LGBT individuals and those with non-heteronormative ideas and views, which contradicts Article 11 of the Constitution of Georgia, which states that all people are equal before the law.

Although the text of the Constitution of Georgia does not explicitly mention sexual orientation, Article 11 of the Constitution guarantees the inadmissibility of discrimination based on sexual orientation, as indicated by the practice of the Constitutional Court of Georgia.[12]

The proposed bill places LGBT individuals and other persons in a different position, subjecting their expression, assembly, and education to content control and prohibitions.[13]

As per the Constitutional Court of Georgia, differentiated legislative regulation is not always considered a violation of the principle of equality in the eyes of the law. It is the Court’s view that in a social, legal, and democratic state, distinguishing a certain group of citizens from the general population and establishing different, relatively unfavorable legal regulations for them must be justified by substantial, reasonable, and objective reasons.[14] However, it is impossible to justify the different treatment arising from various points of the constitutional law project "On the Protection of Family Values and Minors" with substantial, reasonable, and objective reasons. The proposed draft law imposes absolute prohibitions - indefinitely and without exception - on the freedom of expression for LGBT individuals and individuals who express non-heteronormative views and ideas. The only legitimate aim cited by the legislature is the vague concept of protecting family values.

Therefore, it is indisputable that the presented bill is incompatible with the Constitution of Georgia, both in its formal legal aspects and its substantive legal content.

3. Compliance of the Proposed Constitutional Law with National Legislative Standards

It is noteworthy that the proposed constitutional law fundamentally contradicts the basic standards provided by national legislation.

According to Article 3, Paragraph 1 of the Law of Georgia on Freedom of Speech and Expression, the state recognizes and protects freedom of speech and expression as eternal and supreme human values[15]. Paragraph 2 of the same article states that freedom of expression encompasses various forms of expression, including:

• Absolute freedom of thought;
• The right to seek, receive, create, store, process, and disseminate information and ideas in any form;
• The inadmissibility of censorship;
• Academic freedom in teaching, learning, and research;
• Freedom of art, creation, and invention.[16]

Furthermore, the legislation establishes certain grounds for restricting freedom of speech and expression. According to Article 8, Paragraph 1 of the Law of Georgia on Freedom of Speech and Expression, any restriction on freedom of expression may be imposed only if it is provided by a clear and foreseeable, narrowly targeted law, and if the protected good outweighs the harm caused by the restriction. [17] Legislative regulation that restricts this right must directly aim to achieve a legitimate goal, be critically necessary for the existence of a democratic society, and must not be discriminatory. It must also be proportionately restrictive.[18]

A key legislative provision on the content regulation of freedom of expression states: “Content regulation may be implemented only in the form of viewpoint-neutral, non-discriminatory restrictions.”[19]

According to Article 2, Paragraph 1 of the Law of Georgia on the Elimination of All Forms of Discrimination, any form of discrimination is prohibited in Georgia, including direct discrimination, which is defined as treatment or conditions that place a person in an unfavorable position based on any characteristic, including sexual orientation, compared to others in similar conditions.[20]

Legislative regulation on the content regulation of freedom of expression is more foreseeable. It allows for content regulation of speech and expression if the expression concerns:

• Defamation;
• Obscenity;
• Direct insult;
• Incitement to commit a crime;
• Threats;
• Personal data, state, commercial, or professional secrets;
• Advertising, teleshopping, or sponsorship;
• Freedom of speech and expression of a military serviceman, an administrative body, or its officials, members, or employees;
• Freedom of speech and expression of a person deprived of liberty or under restricted liberty.[21]

It is clear that the proposed constitutional law by the ruling party is entirely contradictory to the national legislative standards on freedom of expression and the inadmissibility of discrimination. The restrictions established by the law, which impose discriminatory regulations on the freedom of expression of the LGBT community and individuals with non-heteronormative views, completely deprive these individuals of the ability to disseminate and receive information related to gender identity and sexual orientation.

4. Compliance of the Proposed Constitutional Law with the European Convention on Human Rights

Freedom of expression is reinforced by Article 10 of the European Convention on Human Rights. According to Paragraph 1 of this article: “Everyone has the right to freedom of expression. This right includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”[22] It should be noted that Paragraph 2 of Article 10 exhaustively lists the legitimate aims for which this right may be restricted.

The European Court of Human Rights has established a precedent that freedom of expression is one of the essential foundations of a democratic society, a fundamental condition for its progress and for the development of every individual. Freedom of expression applies not only to “information” or “ideas” that are favorably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock, or disturb the state or any sector of the population. Such are the demands of pluralism, tolerance, and broadmindedness, without which there is no democratic society.[23]

In the context of restricting the freedom of expression of LGBT individuals under the pretext of protecting the interests of minors, the European Court of Human Rights’ decision in the case of “Bayev and Others v. Russia” is relevant. In this case, the European Court strictly criticized legislation in Russia similar to the bill initiated by Georgian Dream.

According to the applicants, who were LGBT+ activists, the legislation in Russia not only restricted their activities and participation in LGBT+ rights advocacy campaigns but also forced them to hide their sexual orientation. Publicly disclosing their orientation was considered an administrative offense under the law. The applicants were held administratively liable for publicly displaying banners with LGBT+ content.

The court clarified that interference with freedom of expression cannot be justified on moral grounds, especially when the primary legitimate aim of the restriction is to prohibit the promotion of homosexuality. The court found that it is insufficient to justify restricting a person’s freedom of expression by citing broad societal criticism of homosexuality or the potential incompatibility of same-sex relationships with traditional family values.[24]

Furthermore, the court emphasized that it firmly disregards political decisions of states that are unequivocally biased towards the heterosexual majority. The existence of negative attitudes towards the minority community in a particular country, along with claims of incompatibility between traditions and homosexuality, was not deemed sufficient justification for differential treatment by the court.[25]

Additionally, the court discussed the inadequacy of justifying restrictions based on the legitimate aim of protecting minors. The European Court explained that: “In discussing such sensitive issues as sexual education, the positions of parents, educational policies, and third parties' rights to freedom of expression must all be balanced. In such a context, the authorities have no choice but to promote the dissemination of objective, diverse, scientifically accurate, and beneficial information for young audiences.”[26]

Since the applicants' expression of their sexual identity did not contain sexually explicit, false, or aggressive expression, and they did not advocate or urge others to engage in any specific sexual behavior, the European Court found that their expression did not infringe on the rights of parents and children.

Thus, in this case, the court ultimately determined that there was unlawful interference with freedom of expression.[27]

5. Criticism from the Venice Commission on the Analogous Regulations of the Proposed Bill

In 2013, the Venice Commission jointly reviewed the law "On the Prohibition of Homosexual Propaganda" adopted in the Russian Federation (as well as in Ukraine and the Republic of Moldova at that time) and pointed out systemic legal flaws and issues in all three cases.

The Venice Commission explained that if there is interference with freedom of expression, such a restriction must be, on the one hand, defined by law, and on the other hand, foreseeable.

The Commission stated that it is inadmissible for the fundamental basis and aim of the law to be the prohibition of broad concepts such as the terms "propaganda" and "promotion," because the existing legal practice regarding the application of propaganda provisions is vague and unforeseeable.[28] According to the Commission, these provisions are not adequately explained by precedent law, making it unclear whether the prohibition of "homosexual propaganda" includes, among other things, the expression of support for homosexuality, efforts to change homophobic attitudes, or the disclosure of factual information about a person's sexual orientation.[29]

In the Venice Commission's opinion, the prohibition of homosexual propaganda, on the one hand, broadens discussions about an individual's sexual orientation. However, on the other hand, it categorically restricts public discussions about this issue by persons belonging to the LGBT community, which is incompatible with the standards protected by freedom of expression.[30]

Furthermore, when discussing regulations, the Commission clarified that the legitimacy of restrictive measures that exclude all other sexual identity groups from the public space, except for heterosexuals, must be justified by strong and convincing reasons. The Commission did not consider the protection of public morals as a legitimate aim, explaining that the enjoyment of freedom of expression by LGBT individuals is not dependent on the positive or negative attitudes of the heterosexual majority. Any restriction imposed for the purpose of protecting public morals must be based on principles that are not exclusive to a specific tradition or attitude.[31]

The Commission also reviewed the legitimacy of the second stated aim of the law "On the Prohibition of Homosexual Propaganda," which is "the necessity of protecting minors." The Commission argued that it is unacceptable for minors not to have sufficient information available on sexuality, including homosexuality, and therefore, the motive of child protection was deemed illegitimate.

In 2021, the Venice Commission sharply criticized the constitutional law developed by Hungary, which significantly restricted the freedom to receive and disseminate information about subjects of sexual orientation and gender identity.[32]

Conclusion

Thus, allowing content control over assemblies, works, programs, or other materials, as well as information used in the educational process of public or private educational institutions, and permitting broad, vague, and illegitimate grounds for interference with rights, contradicts the basic principles of the Constitution and international human rights law. This interference is incompatible with a democratic and pluralistic society.

It is evident that the proposed constitutional law, which Georgian Dream lacks sufficient support to pass, aims more at using homophobia for political purposes and represents a grave example of the instrumentalization and generation of social hatred. Although the authors of the bill attempt to separate the protection of LGBT rights from propaganda, the text they initiated, along with public statements made regarding this bill, allows for arbitrary and unrestricted interference not only in the expression of LGBT individuals but also of teachers, journalists, professors, writers, directors, doctors, and others in their academic freedom.

Additionally, it is clear that the consideration of this legislative initiative and the hostile discourse accompanying it will lead to an increase in hate-motivated violence and create a hostile and unsafe environment for LGBT individuals and others. Consequently, this initiative contradicts the constitutional right to equality and the commitments recognized by Georgia on its path to European integration, including the implementation of anti-discrimination policies and the fight against hate-motivated crimes.

Beyond its incompatibility with constitutional and international legal principles in the field of human rights protection, this legislative initiative is also at odds with the goals of European integration, which fundamentally includes the protection of equality ideals. Therefore, beyond harming human rights and democracy, this constitutional initiative hinders the country's European integration and contradicts its key values.

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