In yesterday’s Grand Chamber judgment in the case of Macatė v. Lithuania, the European court held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

The applicant in the case, Neringa Dangvydė Macatė, was a Lithuanian national who was born in 1975 and lived in Vilnius. She died in March 2020 and her mother continued the proceedings in her place.

She was an openly lesbian children’s author whose book Amber Heart (Gintarinė širdis), which contained fairy tales aimed at nine- to 10-year-olds, was published by the Lithuanian University of Educational Sciences in 2013 with partial funding from the Ministry of Culture.

Adapted from traditional fairy tales, the book included characters from different ethnic groups or with intellectual disabilities and addressed issues such as stigmatisation, bullying, divorced families and emigration. Two of the six fairy tales in the book had story lines about relationships and marriages between persons of the same sex.

Soon after publication, the Ministry of Culture was forwarded a complaint alleging that the book was “encouraging perversions”. The Ministry asked the Inspectorate of Journalistic Ethics to assess whether the book might be harmful to children.

Around the same time, eight members of the Lithuanian Parliament sent a letter to the university, relaying to it concerns expressed by associations representing families about literature which “sought to instil in children the idea that marriage between persons of the same sex was a welcome phenomenon”.

The Inspectorate concluded that the two fairy tales which depicted same-sex couples did not comply with section 4 § 2 (16) of the Act on the Protection of Minors from Negative Effects of Public Information.

That provision states that any information which “expresses contempt for family values” or “encourages a different concept of marriage and creation of family than the one enshrined in the Constitution or the Civil Code” is considered as having a negative effect on minors.

The Inspectorate recommended that the book be labelled with a warning that it might be harmful to children under 14 years of age.

The university’s publishing house suspended distribution of the book in March 2014. A year later distribution was resumed, with the book bearing a warning label, in line with the Inspectorate’s recommendation.

The applicant lodged civil proceedings against the university, arguing that depiction of same-sex relationships could not be considered harmful for children of any age, but in 2019 the courts ultimately endorsed the measures taken against the book and dismissed her claim.

In particular, in February 2019 the Vilnius Regional Court — in a second round of proceedings after the Supreme Court had remitted the case for fresh examination — upheld an assessment at first instance of the harm the book could cause children.

The regional court also found that certain passages were too sexually explicit and that the way in which the fairy tales depicted a new family model raised the question of whether the applicant herself had sought to discriminate against those who held values different from her own.

The ECtHR viewed that the underlying intent of the relevant section of the Minors Protection Act was to restrict children’s access to information about same-sex relationships.

The court had already held in its case law that there was no scientific evidence — as confirmed by various international bodies — to suggest that the mere mention of homosexuality, or open public debate about sexual minorities’ social status, would adversely affect children.

The court also took note of the fact that the laws of a significant number of Council of Europe member states, including Lithuania, either explicitly included education on same-sex relationships in school curricula, or contained provisions on ensuring respect for diversity and prohibition of discrimination on the grounds of sexual orientation in teaching.

Lastly, it held that restricting children’s access to information about same-sex relationships demonstrated that the authorities had a preference for some types of relationships and families over others and that they saw different-sex relationships as more socially acceptable and valuable than same-sex relationships, thereby contributing to continuing stigmatisation. Therefore, such restrictions, however limited in their scope and effects, were incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society.

The court concluded that the measures against the applicant’s book had not pursued any aims that it could accept as legitimate for the purposes of Article 10. It also held by 12–5 that there was no need to examine separately the applicant’s complaint under Article 14 taken in conjunction with Article 10.

Lithuania was ordered to pay the applicant’s mother €12,000 in respect of non-pecuniary damage and €5,000 in respect of costs and expenses.