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Recently, there has been some speculation in the public debate over a number of provisions of the Council of Europe Convention “Action Against Violence against Women and Domestic Violence” signed on May 5, 2011 in Istanbul.
For example, according to the president of the Chamber of Advocates of the Republic of Armenia Ara Zohrabyan’s claim, , the Convention contradicts the Constitution of the Republic of Armenia. In support of the statement, Part 3 of Article 4, Part 1 of Article 12 and Part 1 of Article 14 are invoked.
“The Fact Investigation Platform” conducted a study to find out whether there are grounds for finding contradictions between the Constitution of the Republic of Armenia and the provisions of the Convention.
Gender Identity and Discrimination
Speaking of Part 3 of Article 4, A. Zohrabyan always refers to Point 53 of the explanatory report of the Convention, noting that “… The Explanatory Report of the Convention defines “gender identity” as follows: “Certain groups of individuals may also experience discrimination on the basis of their gender identity, which in simple terms means that the gender they identify with is not in conformity with the sex assigned to them at birth. This includes categories of individuals such as transgender or transsexual persons, crossdressers, transvestites and other groups of persons that do not correspond to what society has established as belonging to “male” or “female” categories.” Moreover, if we read paragraph 53 carefully, it becomes clear that it says that studies show that some groups of people experience discrimination when using certain services.
Women are still discriminated against when reporting violence. The mentioned groups of people, as well as migrant and refugee women are discriminated against; women who have certain health status, gypsy women, etc. are subjected to double discrimination. In other words, it is about discrimination against different groups of persons who have been subjected to violence when using protective measures under the Convention.
The interpretation of the concept of “gender” enshrined in the Convention should also be addressed.
In the Point 43 of the explanatory report of the Convention it is clearly stated that ” In the context of the Convention, the term gender is based on the two sexes, male and female. ” The same point explains that there are also socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men.
Research shows that some roles and stereotypes reproduce harmful practices to justify violence against women. In this sense the term “gender” under this definition is not intended as a replacement for the terms “women” and “men” .
The quoted passage directly shows that the terms “gender” , “gender identity” used in the Convention do not imply the existence of another sex and are not intended to replace the notions of “women” and “men”.
Referring to Part 3 of Article 4, it must be noted that it defines that measures to protect the rights of victims, shall be secured without discrimination on any ground such as sex, gender, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, gender identity, age, state of health, disability, marital status, migrant or refugee status, or other status.”
The part supposedly contradicting to the RA Constitution, according to A. Zohrabyan, is using the notions of “sexual orientation, gender identity” as basis for prohibiting discrimination in the quoted article.
It should be noted that Article 29 in the RA Constitution clearly defines , that “Discrimination based on sex, race, skin colour, ethnic or social origin, genetic features, language, religion, world view, political or other views, belonging to a national minority, property status, birth, disability, age, or other personal or social circumstances shall be prohibited.
The expression “other personal or social circumstances” secured in the Constitution itself is quite broad and includes the right to abstain from discrimination irrespective of “sexual orientation or gender identity.”
Similarly, Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms defines “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
As we can see, the European Convention as well as the Constitution of the Republic of Armenia does not contain any specific reference to prohibition of discrimination on grounds of sexual orientation or gender identity, however, this does not imply that this version of discrimination is acceptable.
The European Court of Human Rights in a number of its decisions (e.g. Identoba and Others v. Georgia, M.C. and A.C. v. Romania, etc.) has considered discrimination on the basis of gender identity and / or sexual orientation and considered a violation of Article 14 of the European Convention.
The Decision of the Constitutional Court of Bulgaria
Referring to A. Zohrabyan’s next counter argument on the same question, that is the decision of the Constitutional Court of Bulgaria, it should be noted, that even though the Court of Bulgaria in ist Decision N13 made on July 27, 2018 concluded that the Convention contradicts the Constitution of Bulgaria, however,it has been repeatedly mentioned about the political context underlying that decision.
Four judges of the same court also mentioned about this, among them Roumen Nenkov, Philip Dimitrov, Konstantin Penchev and Georgi Angelov, who disagreed with the position of eight judges of the Court and expressed special opinion. Dimitrov criticized the court for using controversial “gender ideology”, while Nenkov and Angelov, in their turn, called the decision a “gift to politicians”.
Among judges who expressed special opinion was Penchev who also mentioned, that the Part 5 of Article 2 of the Bulgarian Law on “Equality between Men and Women” has even secured “gender stereotypes” as a central principle of the country’s equality policy, whereas section 1 of the Additional Terms of that policy states, that women and men are free to develop their abilities and make choices without limiting their gender and social role.
In other words, the concept of social role of women and men secured in Bulgarian legislation is more flexible and inclusive.
On the Obligation to Abolish Traditions and Customs
It is undeniable that violence against women is gender based, when a woman is subjected to violence in the family as well as in other areas just for beaing a woman, and in this case any speculation aimed at such a contentious interpretation of the question is unacceptable.
It is noteworthy that A. According to Zohrabyan’s claim, “Article 12 of the Convention contains an obligation to abolish traditions and customs;States Parties should take the necessary measures to bring about changes in the social and cultural behavior of women and men: in a sense, to eradicate prejudices, customs, traditions, and all other phenomena based on the stereotypical idea of the role of men and women. ”
The Convention does not contain a provision requiring States to ignore their own cultural characteristics or intangible cultural values and heritage. It is necessary to realize that the logic of this article is entirely directed to the elimination of those phenomena; which serve as basis for developing domestic violence and violence against women.
Point 43 of the Explanatory Article of the Convention referring to that article, notes that with the Article the Convention calls on States to address gender-based perceptions of violence against women and domestic violence as a basis for the protection and support of all persons subjected to violence.
This means that forms of violence against women and domestic violence must be addressed in the context of a proper response to the complexity of the phenomenon: in the context of the prevailing inequality of women and men, existing stereotypes, perceptions of gender roles and discrimination against women.
Consequently, this means that the phenomena formed by the subordination of women or the idea of stereotypical separation of women and men, and including prejudices, customs and traditions, must be eradicated and not to justify domestic violence and violence against women by their existence, which is a key milestone for a healthy society without violence.
Moreover, Article 5 of the UN Convention on the Elimination of All Forms of Discrimination against Women, ratified by the Republic of Armenia as early as 1993, states that “ States Parties shall take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”
About the Obligation to Propaganda and the “Third Sex”
The content of another distorted article of the Convention, According to Zohrabyan, envisions that States “are obliged to carry out propaganda”.
This non-existing obligation is attributed to Part 1 of Article 14 of the Convention; according to which the Parties, if necessary shall take measures to include educational materials on gender equality, gender stereotypes, mutual respect and non-violence in interpersonal relations, gender-based violence against women and the right to personal immunity, in all formal educational programs; and to be adapted to the developing capabilities of learners.
The mentioned article, according to A. Zohrabyan implies the introduction of a so-called “third sex” educational module.
In general it should be noted that, in no article of the Convention, the explanatory report uses the term “third sex”.
The Executive Secretary of the Council of Europe on the Convention also touched upon this issue, noting: “that there is no “third sex” concept in the Convention. Moreover, even if by “third sex” some persons mean that the Convention is aimed at protecting the rights of transgender or intersex or non-identifiable men or women, even in that case, it should be clearly stated that all these issues fall outside the scope of the Convention.
Referring to the content and importance of this article, the Executive Secretary of the Council of Europe states that gender stereotypes in education often shape perceptions of women’s subordination and make them more vulnerable to violence against women.
The commentary on this article in the Explanatory Report states that it is up to the States themselves to decide what teaching materials should be taught and at what levels of education.
In other words, there is no type of compelling material, and it is simply important that the public is educated and knows that the roles of men and women in the family, society, and politics are not inferior to one another, but are equal.
That is to say, the Convention does not specify the content of the teaching materials nor does it mention what is to be taught at that level, but simply requires that the above mentioned issues should be taken into account and included in the educational materials.
Moreover, the same paragraph also states that some countries include such materials in curricula, while others leave this question to the discretion of the school.
Therefore, here there is also no “fear of novelty” . The RA Law on Ensuring Equal Rights and Equal Opportunities for Men and Women considers gender discrimination to be the reproduction of stereotypes through mass media, education and culture. That is to say, our current legislation stipulated all these years ago, and there can be no talk of sexual orientation preaching.
Speaking of equality between women and men, gender-stereotyped roles, gender roles void of stereotyping, as well as educational materials on gender-based violence and the right to personal immunity, first of all we have to realize, that for developing a healthy society it is a priority to have such an education system, which will be based on equality and will be based on mutual respect and the formation of consciousness to resolve disputes without violence.
Adoption of Children by Homosexuals
- Zohrabyan agrees with the statement, that adoption of children by homosexuals “will be a technical matter” (watch the part 5:40-5:50) by the ratification of the Convention, and that the Convention aims to “give unlimited powers to the LGBT community” (watch the part 08:30-08:50).
In this regard, it should be clearly stated that the Convention does not define the notion of “family”, does not regulate family life, and does not provide any approach to family structure.
Moreover, the Convention does not in any way address the issue of establishing rights and/or powers for LGBT * persons and does not discuss the adoption of children by homosexuals in any way.
It just presents that as women with disabilities, women belonging to national minorities, women living with HIV or AIDS, so LGBT * community members may be discriminated against when receiving support services and using protective mechanisms under the Convention.
It is noteworthy, that the views expressed by Ara Zohrabyan largely coincide with the views expressed on the “No to Istanbul Convention Ratification” website, which tend to be manipulatively spread in the public. There are similar speculations on the Convention in the speech of former Republican Party Vice Speaker Eduard Sharmazanov.
