Article by Accept
On June 16th, 2020, the Romanian Parliament adopted Law 87/ 17.02.2020: Proposal to modify and complete the Law Regarding National Education nr.1/ 2011. The law will now go to the President of Romania for promulgation. The President has a time-limit of 20 days to decide whether to send the law back to the Parliament for re-examination.
This proposal would introduce a problematic paragraph in article 7 of the National Education Law, prohibiting education regarding the so called “gender identity theory” and refusing to accept the current scientific consensus which distinguishes between gender and biological sex. As opposed to “sex,” which is a biological concept (a person’s body can be male, female, intersex), “gender” is a social construct, based on an ensemble of emotional, behavioural and cultural characteristics which society “attaches” to a person’s biological sex. Gender can have many components, such as gender identity, gender roles, gender expression.
The adopted legal provision has the following wording:
“Art.7 (1) In all education entities and institutions and all spaces that are assigned for education and professional training, including entities that provide extracurricular education, there are strictly forbidden:
- e) activities aimed at spreading gender identity theory or opinion, understood as the theory or opinion that gender is a concept that is different than the biological sex and the two are not always the same;”
This prohibition profoundly goes against Romania’s Constitution and outlaws all teachers, professors, counselors, NGOs, trainers, doctors and social workers who discuss gender, gender identity, transgender issues. This puts the integrity of the educational space, freedom of thought and of expression in the academic environment in great danger. The State should provide information based on science and research to students, not information based on prejudice and religious bigotry. The effect of this law on the transgender community must also be taken into consideration. In Romania, the trans community confronts alarming rates harassment, violence and suicide provoked by the social discrimination it faces daily and the absence of education on gender identity and gender equality in general.
Constitutional and International Law Violations
Passing this law represents a dangerous precedent for our democracy and constitutes a start of adopting censorship laws by the state and limiting constitutional freedoms and rights. This goes against the principle of the rule of law (Art.1.(3) in the Constitution) and the principle of legality (Art.1.(5) of the Constitution), which states that if certain social behaviours are prohibited, the law must indicate the type of legal sanction associated with those behaviours. In this case, the sanction was taken out of the text of the law, creating judicial uncertainty and allowing potential abuses against fundamental rights.
The law also violates the right to private life (Art.26 of the Constitution), the right to physical and psychological integrity (Art.22 of the Constitution) of trans people and discriminates against an entire social category (Art.16 of the Constitution). Trans people are a reality in Romanian society which cannot be hidden or denied. At the level of the European Court of Human Rights, trans people are protected through their right to private life since 1992 (B. v France), when they won the right to be recognized legally, as well as the right not to be discriminated against, in 2010 (PV v. Spain). At EU level, laws related to equality between women and men have been extended since 1996 to include trans people (C-13/94, P. v. S and Cornwall County Council, 1996, reaffirmed in C-423/04 Richards v. Secretary of State for Work and Pensions, 2006). The law violates The Istanbul Convention, which Romania signed, in which the notion of gender is defined and recognized as the base of the institutional construct around preventing and combating violence against women and domestic violence. Specifically, the Istanbul Convention defines “gender” (Art.3 letter (c)) as being different from “biological sex”.
Additionally, the law to modify the National Education Law nr.1/2011 (L87/2020) blatantly violates freedom of expression in the educational sphere, as protected by Article 30 in Romania’s Constitution, as well as academic autonomy, as guaranteed by art. 32 in the Constitution. In a democratic country, in which the rights and liberties of citizens are guaranteed, a lawmaker cannot prohibit what theories or opinions are taught to students. The academic space should be open, as well as a space of dialogue and for expressing one’s opinions.
All of the aspects mentioned above are allthemore serious as they also restrict extracurricular trainings and courses on gender identity issues, including those organized by NGOs. Professionals such as prosecutors or judges, police officers, doctor, psychologists, social workers need to learn about gender and gender identity to be able to properly do their jobs, whether a police officer who intervenes in a domestic violence or gender-based violence case or an endocrinologist who consults a trans or intersex person.
The opportunity for the law
Firsty, we need to underline that almost half of Romanians (43%) support educational activities that contain information around gender identity and transgender people, according to the September 2019 Discrimination in the European Union – Eurobarometer survey.
In 2020, the Fundamental Rights Agency (FRA) of the EU launched a study on LGBTI people’s situation called “A long way to go for LGBTI equality,” which collects LGBTI experiences. In Romania, FRA’s survey was completed by 3214 LGBTI people. According to the survey, Romania continues to be one of the most unwelcoming countries for LGBTI people in the EU. Romanian LGBTI people are among the most affected by homophobic and transphobic aggressions, and simultaneously have very low report rates for these incidents because of lack of trust in police. These aggressions affect trans people disproportionately: 1 in 3 trans people who completed the survey report at least one instance physical or sexual abuse in the last 5 years. The experiences of trans people regarding violence, sexual abuse and harassment are among the most serious in the EU: 82% of trans respondents report having experienced harassment in the last 5 years; 73% of trans respondents report having been harassed in the last year; 16% of trans repondents report having been physically or sexually abused because of their gender identity, the highest number in the EU; 86% of respondents believe Romania is not taking the appropriate action to combate intolerance and prejudice against LGBTI people. Similar data was also collected by ACCEPT, as part of a study called “Trans in Romania”.
In this social context, it is allthemore important to educate people around gender identity. As a result of the discrimination and violence they face, many trans people consider committing suicide. Social prejudice are exacerbated by a lack of support in the educational and professional areas, as well as by the absence of access to adequate health services. All of these transgender people are sons, daughters, brothers, sisters, friends or even parents. Their life and their emotional wellbeing are important for the wellbeing of all. ACCEPT estimates that 120.000 transgender people live in Romania. The current proposed law does not solve any real societal problem, but rather excludes and marginalizes a group of people who are already vulnerable, discriminated against and often victims of hate crimes.
 Factsheet, Eurobarometer on Discrimination 2019: The social acceptance of LGBTI people in the EU, p. 15, https://ec.europa.eu/info/sites/info/files/ebs_493_data_fact_lgbti_eu_en-1.pdf, 16.03.2020