Baby Sara’s case sets a crucial precedent for the EU
The NGO Deystvie operates a legal defence programme providing support to LGBTI couples in Bulgaria. The award recognises the tireless commitment of Denitsa Lyubenova and Deystvie to LGBTI rights in the context of a complex cross-border family case and a hostile environment for the LGBTI community in Bulgaria. Baby Sara’s mothers came to Deystvie for help as their child born to British and Bulgarian mothers in Spain is at risk of statelessness. Sara’s story brings to light the outstanding work of lawyer Denitsa Lyubenova and the NGO Deystvie in their dedication to improve the rights of LGBTI people in Bulgaria. Following the refusal of the Bulgarian authorities to recognise baby Sara’s Spanish birth certificate recording both her mothers’ names, Lyubenova has taken the case to the Court of Justice of the European Union (ECJ). In December 2021, a landmark judgement paved the way for other EU member states, as the ECJ has ruled that a child and its same-sex parents must be recognised as a family, therefore, the child should be issued a Bulgarian passport, and the family should have free movement in all Member States of the European Union”.
The following interview with with Denitsa Lyubenova, lawyer from the NGO Deystvie was carried out in August 2021 as part of the Activizenship #6 – Civic Space Watch report 2021.
What are the goals and types of actions of Deystvie?
In Bulgarian, Deystvie means “action”. We started our work as an informal group of friends in 2010. The organisation was founded officially in 2012, and in 2014 organisation’s Legal Program was created. The legal program is really at the heart of the organisation now. Since 2014, we provide pro bono legal services and engage in strategic litigation. Our long-term goal is to change the Bulgarian legislation in three main areas: First, we want to achieve recognition for same-sex partnerships and/or marriage equality for LGBT+ couples. Then, we are working towards changing the criminal code so that it recognises hate crime against LGBT+ people. Finally, we want the state to put in place a procedure for legal gender recognition.
We also organise many community and human rights events. For instance, we co-organised Sofia Pride and organise the Sofia Pride Film fest, an annual film festival. We also publish books to facilitate our legal program and stories to show people who might become victims of discrimination what their rights are. We want to raise awareness about their rights and empower them to speak up if they are violated. Then, our role is also to defend their rights with legal consultation and representation before courts.
Could you give us an overview of the legislative and political landscape in regards to LGBT+ rights in Bulgaria?
The key issues of the Bulgarian legislation are the ones I mentioned above. As a post-communist country, Bulgaria has a very patriarchal and chauvinistic society. There is a lot of domestic violence and phobia not only against LGBT+ people but also against Roma, refugees, Jews… against everyone who differs from the norm as understood by the general public. In the past 10 years, the work on LGBT+ rights has been difficult. At the same time, we saw a lot of improvements and acceptance both in society and at the administration level.
Nevertheless, this year especially around our Pride events, many attacks took place against LGBT+ people. Neo-Nazi groups surrounded us, and we had to pay additional private security to do extra checks and protect each event. One of the events was especially terrifying for me. We had organised a movie night during Sofia Pride film fest where around 150 LGBT+ people gathered to watch a movie. During this occasion, we found ourselves surrounded by between 200 and 300 violent hooligans. They were screaming during the whole event, holding hands around us to create human chains to trap and threaten us. This year, it was extremely challenging for me to stay in the public eye around Pride events. However, we should not let fear prevail! We are on the right side of history, and we do our job with all the love we are capable of.
Have there been being physical injuries as a result of these attacks around pride events?
Yes, there were several. During one of our events, we were raided by a far-right group and our chairperson was attacked; she was pushed, and they tried to take her out. The police took measures to take these people outside of the venue. In May 2021, we co-organised a Pride event in Burgas, the first-ever Pride outside of Sofia. The people who gathered around this event were very violent; they were throwing stones, glass bottles, and a type of Molotov cocktail. We were evacuated, and we personally paid for taxis in order to escape the place. This is one of the events where the police did not take enough measures to secure people’s lives and health. They were expecting this kind of attack, but they were unprepared.
Otherwise, during the Sofia Pride, the police forces took all the necessary protective measures. We have a good and close cooperation with the police in Sofia. We work very closely together to prepare our events beforehand. We always have a contact person present on the day responsible for the security during the event itself. However, in smaller cities outside of the capital of Bulgaria, the situation is different. We need to work more closely with these police officers.
We often receive reports from people who suffered violent attacks. The striking thing is that these attacks started happening during the day as well. This is another crucial area of work for our organisation: we are very proud that since 2019, we have trained between 100 and 200 police officers on how to tackle hate crimes and help LGBT+ communities.
Let’s take a step back: when did these attacks start happening?
I will start with a small retrospective. Before the elections in April 2021, our government was composed of a centre-right political party in a coalition with a far-right political party. For almost 12 years, it was a difficult political context to operate in. In 2017 and 2018, a big debate in Bulgaria took place regarding the ratification of the Istanbul convention. This is where the term “gender ideology” was invented. There was a serious backlash from politicians, the Bulgarian Church, the media, and the general public against the Istanbul Convention, and LGBT+ people were targeted as scapegoats. This was when several negative developments started happening to the LGBT+ community in the country: violent attacks against LGBT+ people started raising, Courts, including the Constitutional court, started targeting trans people and refusing changes in the legal gender of trans people – it is shameful for the courts in Bulgaria. In 2018, the Constitutional Court of Bulgaria ruled that the Istanbul Convention is against the Bulgarian Constitution; hence, we could not ratify it.
In early 2019 an official complaint was filed at the prosecution office against the LGBT NGO Deystvie by the leader of Revival Political Party – a far-right political group, with the Prosecutor’s Office. The group is not seated in the Parliament. However, the party has members in the Municipal councils in several cities across the country. Revival filed the complaint together with an Evangelistic NGO National Group – Parents United for Children” – ROD (“Национална група – Родители обединени за децата” – РОД) alleging a crime under Article 108 of the Bulgarian Penal Code:
“A person who preaches fascist or another anti-democratic ideology or forceful change of the social and state order as established by the Constitution of the Republic of Bulgaria, shall be punished by imprisonment for up to three years or a fine of up to BGN 5,000 (2,500 thousand euro)”.
This criminal investigation should be understood as a manifestation of shrinking space for human rights’ defenders, especially LGBT+ rights’ defenders, who were and still are being subjected to severe pressure. It also needs to be contextualised in the democracy backsliding and violations of human rights in the country. This landscape, together with the lack of legislation protecting LGBT+ people and lack of recognition of rights, created the fear of insecurity in us. Our main fear was that if the Prosecutor’s Office decided to open a prosecutorial investigation, our bank accounts would be immediately blocked, and people in charge of the organisation would be arrested. Fortunately, the Prosecution office decided not to open an investigation against Deystvie.
Now, the situation has changed, and none of the far-right political parties is represented in Parliament. We are very happy because we did a lot of campaigns to achieve this result.
Did you experience disinformation or smear campaigns against LGBT+ people and organisations from the media or the government coalition? And how do you respond to this challenge?
We learned that we need to build strong civil society coalitions because the organisers of these anti-human rights campaigns, such as the ones against the adoption of a more liberal Family Code, the ratification of the Istanbul Convention and the Strategy of Children in Bulgaria, are loud and interconnected. “Agenda Europe” is a pan-European, Christian-extremist network committed to the “restoration of natural order”. Agenda Europe members are the ones who wrote and promoted the draft laws on restricting abortion in Spain (2014) and complete ban on abortion in Poland (2016). They started the European Citizens’ Initiative “One of Us” asking the Commission to halt all EU funding that involved the “destruction of the human embryo”. They also started the European Citizens Initiative “Mum, Dad and Kids” – a legislative effort to protect marriage and family, by defining marriage as “a permanent and faithful union of man and woman with the purpose of founding a family”.
You were nominated for your legal work on baby Sara’s case, which reached the CJEU. Can you tell us more about this case and why it is so special?
Sara was born in December 2019 in a family of two women: a Bulgarian woman and a woman born in Gibraltar but whose descendant were from the United Kingdom. When the child was born, they realised that Sara could not gain Spanish citizenship because neither was a Spanish citizen. Therefore, they requested the UK to issue a birth certificate and passport. Indeed, they thought that the ancestry of one of them made Sarah eligible for a UK citizenship. However, the UK passport office stated in an official paper that since the mother was a UK citizen by descent, she could not transfer the UK citizenship to her child. The only possibility left for the couple was to request a Bulgarian birth certificate to get Bulgarian citizenship.
The Bulgarian mother returned to Bulgaria and contacted us to provide legal support. She brought the Spanish birth certificate, on which both mothers were recognised as parents. In the process of getting the Bulgarian birth certificate of the child, she was asked to provide information on who the biological mother of the child was. We refused to give this information because we consider that it was a personal information that was not necessary for administrative bodies to have. Additionally, we consider this practice discriminatory because none of the heterosexual couples returning to Bulgaria with a birth certificate of their child issued from a European Union member state is asked to prove the biological connection with the child. The birth certificate issued from another EU member state should be considered proof of this connection. As we refused to give this information, the municipality refused to issue the child’s birth certificate.
We appealed this decision, and the case reached the administrative Court in Sofia. On the basis of our findings, the court decided that this case concerns pieces of European law that are not clear enough. Hence, the administrative Court of Sophia decided to send the so-called preliminary ruling request to the Court of Justice of the European Union. We had our court hearing in Luxembourg on February 2021 and we are waiting for the court’s decision. This court case is of great importance for the development of EU law.
What would be the impact of the ruling in case of a favourable outcome both in Bulgaria and at EU level?
In the EU and in many member states, there are no standards that secure the rights of same-sex couples, especially same-sex couples who are in cross-border relationships. This means that when travelling or coming back to their country of origin, their rights as partners and spouses are not guaranteed, nor are the rights of their children born in same-sex relations. The uncertainty in same-sex relationships extends to their children. This situation creates a multiplicity of insecurities related to their economic situations, inheritance rights, access to healthcare, and education. This is a grey area at the moment, and it should be discussed and decided at the European level. I hope it will become a priority for the European Commission and the Parliament.
Additionally, the decisions of the Court of Justice are mandatory for all member states. Therefore, if the Court of Justice decision is positive for this case, other EU member states will be obliged to apply this decision. If they do not comply or are too slow, the European Commission can start infringement procedures against those countries. Once the decision is published, we will have to push countries to change their law and to grant recognition to LGBT+ families.
What are your thoughts on the first LGBTI strategy? Do see any new opportunities for support for civil society?
First of all, I think it is a very important position on behalf of the European Union. It is very meaningful for the advancement of LGBT+ rights in the EU. It important and needed in the current context across Europe, and especially in Hungary and Poland. I think that a lot more can be achieved and a lot more can be done to achieve it. We understand how politics work and how the European Union functions, however we hope that human rights will be a priority for the EU. It is crucial that people understand that the rule of law and democracy cannot exist without human rights.
What else could the EU do to support LGBT+ organisations in their work and in facing the challenges you described in Bulgaria?
We need more action instead of words from the EU. We need the EU to understand that threats will not stop countries like Bulgaria, Romania, Poland, Hungary. The EU should be more courageous to use infringement proceedings or stop specific funding for the Governments that abuse democracy.
We cooperate a lot and with different organisations, mainly in the field of LGBTIQ rights and mainly with umbrella organisations such as ILGA Europe, ILGA World, NELFA (the network of European LGBTI families) TGEU (the transgender Europe), the intersects organisation, the European lesbian conference. We are all fighting and trying to make our voices heard at the European level, and I think we succeed when we work together.
The interview was carried out on 28 July 2021
 It should be known that the decision was rendered months after the interview took place, therefore the answer to the question should be considered in light of this and of the fact that the decision was favourable.