RUSSIA

Gay Russian Wins Employment Discrimination Case in Landmark Ruling

 

 


Court Rules Homosexuality Is Not a Mental Disorder
 

 
 

 

 

 

ST PETERSBURG, September 22  –  In what is seen as a “landmark” ruling, a court in St. Petersburg has backed a gay man whose military record said he had a mental disorder, solely on the basis that he was gay.

The man, identified only as “Mr. VP”, had applied to the Russian State Railways for a job as a guard, but was deemed to be unfit for the job because of his “mental disorder”.

“The decision of the St. Petersburg court is a huge breakthrough in Russia for LGBT rights,” commented Nikolai Alekseev, head of GayRussia.ru., who praised local lawyer Dmitri Bartenev who did “a fantastic job in presenting the case”.

“Never before have Russian courts decided cases in favour of gay litigants on gay rights.

“But,” he warned, “we should not expect a wave of similar cases as Russia does not have a court system based on precedent.  The decision has a very big symbolic value and will undoubtedly be quote in future cases.  The ball has started to roll and the court system is no longer immune to gay emancipation.

“We will continue to look for other cases and to push them through Russian courts and if needed to Strasbourg”

The St. Petersburg court ruled as unlawful the practice of using military data to restrict human rights and that the diagnosis of Mr. VP of “perverse psychopathy” was based exclusively on his homosexual orientation.  Additionally, the court re-stated that homosexuality is not a mental disorder.

Mr. VP was diagnosed with “perverse psychopathy” in 1992 solely because of his homosexual orientation, which was considered a “mental disorder” in the classification of diseases in the Soviet Union.

At that time a note was entered into Mr. VP’s registry in a local psychiatric clinic, and he was required to attend periodic psychiatric assessments.  He was classified as incapable of serving in the army and issued a military card with the diagnostic code 7b which expressly referred to a psychopathic mental disorder in the Soviet classification of disorders.

In 2003 his entry in the psychiatric registry of the local psychiatric clinic was deleted.  However, the military registration office refused to cancel his diagnosis and confirmed that the office still considered him unable to serve in the army because of his homosexuality which they had incorrectly re-classified as “other disorders of sexual identity,” a classification in the World Health Organization’s International Classification of Diseases (ICD-10)

Later in 2003, Mr. VP applied to the St. Petersburg “Dorozhnaya Poliklinika” [Railway Clinic] to obtain a health certificate which would enable him to begin training as a railway guard, a profession he wanted to pursue.

The Railway Clinic refused to declare him professionally fit for the job because of the diagnostic code in his military card (every man in Russia has a military card, which must be presented to employers when applying for a job) and because of his former entry in the psychiatric registry.

The Railway Clinic did this knowing that Mr. VP was no longer listed in the psychiatric registry. The Railway Clinic maintained that the diagnostic code on Mr. VP’s military card was sufficient grounds to find him professionally unfit according to the list of medical conditions which are incompatible with high risk professions.

Mr. VP was represented by The Mental Disability Advocacy Center (MDAC), an international non-governmental organization based in Budapest (Hungary).

Attorney Dmitri Bartenev, on behalf of MDAC, argued that the decision of The Railway Clinic violated Mr. VP’s rights to education and employment guaranteed by the Russian Constitution.  The issue at stake was whether his “bad military card” or a former record of a mental illness was lawful grounds for limiting his professional ability.

In its submission, MDAC also argued that the applicant’s homosexuality should have never been considered as a mental disorder.

The Frunzensky Distict Court of St. Petersburg in its written judgement declared unlawful the decision of the medical expert commission of the state railway health care institution of February 6, 2003.

The court ruled on two important issues:

1. The court declared unlawful the practice of using military data to restrict human rights: The court found that the military card is a document of military registration and information regarding health status contained on the military card should only be used for the purpose of military registration and not for establishing health status related to employment. The court noted that Federal regulations require employers to assess only certificates from the specialized health institutions authorized to issue such certificates, and in this case Mr. VP had a recent certificate from such an institution which the Railway Clinic had wrongly ignored.

2. The court confirmed that Mr VP’s 1992 diagnosis of “perverse psychopathy” was based exclusively on his homosexual orientation. The court re-stated that homosexuality is not a mental disorder.

MDAC welcomed the judgment.  “[It] will contribute to the fight against stigma about both homosexuality and mental disability in Russia, the NGO said in a statement today.

“It is unfortunately common that Soviet system psychiatric diagnoses continue to be used to restrict everyday life.  People with former records of psychiatric disorders or “bad military cards” – limited ability to serve in the military because of a [former] mental disorder – are routinely prevented from getting jobs.

“Records of former mental disability have been used to deny certificates of professional ability. And, military card diagnostic entries have been used to deny driver’s licenses.

“This judgment goes some of the way toward restoring dignity to people who have had their rights unjustly curtailed in these ways.  To broaden impact, MDAC is disseminating the court’s decision within Russia and beyond.”

■  The Mental Disability Advocacy Center (MDAC) is an international non-governmental organization based in Budapest (Hungary). MDAC protects the rights of people labeled with mental health problems or intellectual disabilities in Central and Eastern Europe and Central Asia through litigation, law reform, research and intergovernmental advocacy. MDAC has participatory status at the Council of Europe and is a cooperating Organization of the International Helsinki Federation of Human Rights.

■  Nikolai Alekseev himself has legal action pending.  He is suing Lomonosov Moscow State University for illegal dismissal and the denial of his topic of the rights of sexual minorities as scientific thesis.

The case was denied in June by a local court in Moscow, much more conservative city than St. Petersburg.  On September 9 the Moscow City Court confirmed the decision of the lower court.  Currently a complaint is being drafted to the European court of human rights in Strasbourg.

This report prepared jointly by GayRussia and UK Gay News

LINKS

The Mental Disability Advocacy Center (MDAC) website

Mental Disease.Org
A guide to coping with mental diseases and disorders.

 

 

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