In July last year, I wrote an article celebrating the fiftieth anniversary of the prosecution of the Little Red Schoolbook, a pamphlet aimed at giving young people an alternative guide to sexual matters (Steve Foster, ‘Fifty years after Handyside (2021) (1) Cov. Law J 39). Now, fifty years later, the Grand Chamber is holding a hearing in the case of Macatė v. Lithuania (application no. 61435/19), to determine whether the regulation of a children’s book containing LGBTI fairy tales, which was labelled as possibly harmful to children, was contrary to the writer’s Article 10 rights.
In this case, Neringa Dangvydė Macatė, an openly lesbian children’s author, wrote a book aimed at nine-ten-year-olds, of six original fairy tales. Adapted from traditional fairy tales, they included characters from various marginalised social groups, such as Roma, persons from different racial backgrounds, persons with disabilities, divorced families, and stories around issues such as emigration and bullying. Two of the six fairy tales contained storylines of romantic relationships and marriages between persons of the same sex, and soon after the book’s publication, there were complaints from associations representing families that stories about such relationships were being presented to children. The Inspectorate of Journalistic Ethics concluded that the two tales failed to comply with the Protection of Minors from Detrimental Effects of Public Information Act. That Act 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.
In response, the publisher added a warning label that the book might be harmful for children under 14 years of age. The applicant then lodged civil proceedings against the publisher, but her claim was dismissed as the publisher had acted in line with the domestic law concerning the concept of family and protection of minors from harmful information. The applicant has since died and her mother now relies on Article 10 ECHR and Article 14 (prohibition of discrimination), complaining that the book was labelled as harmful because it contained a positive depiction of same-sex relationships. She also argues that the Act, although seemingly neutral, was in reality aimed at limiting the dissemination of any positive information about LGBTI persons on the pretext of protecting children.
The judgment will be delivered later in the year, and raises fundamental issues about free speech and public morality, and cultural relativism and the margin of appreciation. In Handyside, the European Court sided with the UK authorities and provided a wide margin of appreciation as, in the Court’s view, morals change from state to state, and it should respect the values of each Member State. Since that time, the Court has supported same-sex (Dudgeon v United Kingdom (1982) 4 EHRR 149), and transsexual rights (Goodwin v United Kingdom (2002) 35 EHRR 18), and upheld domestic laws penalising individuals for refusing to comply with equality and diversity laws (Ladele and McFarlane v United Kingdom [2013] ECHR 37). Thus, can that margin of appreciation survive in the third decade of the twenty-first century?
Meanwhile, in the UK, horns continue to be locked over speech that questions transgender status (Miller v College of Policing [2021] EWCA Civ 1926), or equality and diversity (Ngole v University of Sheffield [2019] EWCA 1127). There have also been court battles over whether and what LGBT+ issues should be taught to children in schools (Birmingham CC v Afsar [2019] EWHC 3217 (QB)). The Grand Chamber will have to consider these issues in a wider, regional human rights context. Provided the case is accepted as admissible (it was the publishers who (directly) imposed the restriction, not the state authorities), then we might witness one of the most fascinating battles on democratic rights in the Court’s history.
Dr Steve Foster
Associate Professor of Law
You can find out more about Steve’s research through his Pure profile, which sets out his research interests, publications, and contact details. You can also find out more about Coventry University’s research through our dedicated research page
3 replies on “The Little Red Schoolbook re-visited. Re-inventing fairy tales, public morals and free speech”
Having read through and considering the evolving cases strengthening the rights of LGBTI, are the rights of others who are from culturally Conservative countries but living in the UK not gradually undermined and eroded ?
Hello and thank you for posting the comment below:
Having read through and considering the evolving cases strengthening the rights of LGBTI, are the rights of others who are from culturally Conservative countries but living in the UK not gradually undermined and eroded ?
This is a good point and one that is engaging debate. My view is that LGBT rights should not be threatened by hate or anti-diversity speech, but that those with different views should be allowed to air them
This case involves a different question – should majority public opinion interfere with LGBT speech? My view is that it shouldn’t, and that the majority should be forced to tolerate this speech – albeit with a right to say that they are unhappy (but not to ban or regulate the speech)
It is a question of balance and context and we haven’t quite got it right at present – everyone thinks they are right and there is no room for discussion or context – that must change
Steve Foster
Thank you sir,
I embrace your reply when you say ‘ albeit with a right to say they’re unhappy [about it when their personal space is invaded]’ by the expression of such freedom.