1. The problem
On Tuesday, 16th of June 2020, the Romanian Parliament approved a law that forbids any discussions on “gender theory or opinion” in Romanian schools and educational establishments (including universities). The newly enacted law exacerbates an already endangered LGBT+ situation in Romania: the country is among the most homophobic in the EU.
The crusade against gender identity and LGBT+ rights began with Romania’s failed anti-LGBT+ Referendum in 2018, the so-called “Referendum for the family”. This took place after a group of conservative NGOs supported by the Romanian Orthodox Church, known as the “Coalition for Family”, managed to launch a citizens’ initiative to modify Art. 48 of the Romanian Constitution, in order to define marriage as the union between a man and a woman.
Up until now, outside and even inside of the capital Bucharest, works to eliminate discrimination have all failed so far, supposedly because of political, religious and societal oppression, and conservativism. If we look a little closer from a constitutional point of view, one of the reasons behind the existing Romanian crusade against gender identity and LGBT+ rights could be the failed conformity between constitutional theory and reality in Romania. One can argue that this problem is best understood by examining the role of political parties and the (lack of) neutrality of the state in matters of religion.
2. The background and the Law No. 87/2020
The Romanian LGBT+ community mostly won its rights due to foreign pressure especially from the European Union. Homosexuality is legal in Romania (only) since 2001 and same-sex marriage and partnership are not recognized; an exception is made for foreign same-sex marriages (see Coman and Others vs. Romania from 5th of June 2018).
The recently approved law (Law No. 87/2020) proposes to change the National Education Law of Romania (Law No. 1/2011) and forbids spreading the “theory or opinion that gender is a concept different from biological sex and that gender and sex are not always the same thing”. Promoting this idea would be forbidden in all educational institutions (including universities), and in all the spaces destined to the vocational education and training, including extracurricular activities. After being adopted by both Chambers of the Romanian Parliament, the bill now lies on the desk of President Iohannis, who was asked to promulgate it. Up until now, the President has not taken further action; there are rumors that he may send the bill to the Constitutional Court of Romania.
Since the adoption of the bill on June 16, several non-governmental organizations, universities, the National Student’s Association as well as the National Pupil’s Council have all expressed their disagreement with the bill. Even the European Parliament addressed President Iohannis a letter, in which the Romanian President was urged to reject the bill and to adopt a posture of promotion of diversity and equality. The letter also reminded about the past resolutions condemning Hungary on similar matters, and that Romania signed and ratified the 2011 Convention on preventing and combating violence against women and domestic violence from Istanbul, which is completely divergent from the Law No. 87/2020.
3. The failure of the Romanian political parties
The short analysis of the Romanian constitutional reality and theory must begin with the 2018 Referendum. On this matter, not only did several (large) parliamentary parties remained neutral, such as the National Liberal Party (PNL), the Alliance of Liberals and Democrats (ALDE) or the Democratic Alliance of Hungarians in Romania (UDMR), but some parties went also against their political ideology, such as the Social Democratic Party (PSD). In an overview, the left Social Democratic Party came to support the same political ideals as the Romanian right-extremist party New Right (ND). Reason for party neutrality could be the fear of the political parties to lose their electorate on one side or on the other side on the topic of LGBT+ Rights. Had they supported LGBT+ Rights, parties that went against their political ideology would had potentially risked losing their Orthodox electorate.
Similarities are to be seen nowadays regarding the Law No. 87/2020. While the People’s Movement Party (PMP) proposed the law and thus expressed its party’s political implementation of policies, most of the other parties did not take an official stance on the matter. The Law No. 87/2020 passed through the Parliament without a debate, neither in the chambers of Parliament nor implicating the public opinion – reactions came only after the adoption of the law. How was this possible? Suggestions show that the reasons could once again lie in the fear of the political parties losing electorate on both sides of the question. As “savior for the people” came, however, the internet. Independent from political parties, online activism involved gathering signatures for and against the law and rallying campaigns from both sides on Facebook craved a distinct space for political debate, a forum for active citizenry mainstream political parties were unwilling and unable to provide.
The Law No. 87/2020, according to its legal path, received short positive answers from the Legal Commission of the Parliament, from the Economic and Social Commission of the Parliament, as well as from the Commission for Human Rights, Chance Equality, Cults and Minorities of the Parliament. The only reject proposal from inside the Parliament came from the Commission for Teaching, Science, Youth and Sport (without argumentation); the Romanian Government sent another reject proposal with a solid argumentation. Above all, the statement of grounds for the law, as proposed by the initiator, did not exceed one page and a half. This suggests not only a lack of interest on the matter from the Romanian Parliament, but especially (once again) a lack of action from the political parties fearful of their fragile electorate. The latter is linked to the fear of the parties to bring up LGBT+ topics in the public debate.
This failure of the political parties to take political stance on the matter, the failure to sum up the political opinions of their party members and supporters, and the failure to deliver faithful ideology-driven policies led to a specific hostile environment to LGBT+ Rights in Romania. It lead to the creation of militant organized private groups that are hostile to LGBT+ rights and against gender identity, as well as to a perpetuated misunderstood situation, rights, positions, and political demands of the Romanian LGBT+ community.
By far most relevant example is the emergence of the group of conservative NGOs known as the “Coalition for Family”, which managed to launch the 2018 Referendum. Together with the Romanian Orthodox Church, they are fighting actively to prevent the legalization of same-sex marriage, and to preserve traditional gender roles. As these organizations are not political parties and don’t have campaigning experience and while their ideas reach to the extreme, their strategies for organizing are unusual and dubious: e.g. promoting their political views every Sunday during the holy mass in the Church or appealing to a populist normalization of radical right-wing ideas by trying to mimic a liberal civic engagement (more details here).
Now, according to Art. 8 Paragraph 2 Sentence 2 of the Romanian Constitution the political parties contribute to the definition and expression of the political will of the citizens, while observing national sovereignty, territorial integrity, legal order and the principles of democracy. Through this legal norm, the Romanian Constitution acknowledges the existence of political parties as part of the constitutional democracy.
In the theory of constitutional democracy, political parties have one of the most important roles: they sum up the political congregation of the will of the people and combine political interest groups; they are actively trying to implement their political agenda, and they occupy a key position in the Parliament. In parliamentary constitutional democracies, parliaments cannot work without parties and vice versa, as almost all political decisions will be taken by a political party. Furthermore, the historical emergence of political parties is tightly linked to that of parliaments (for more on this regard see for example Maurer, Staatsrecht I, München, 7. Ed., 2017, § 11 Marginal Note 1 and following).
Concerning the LGBT+ rights, as we have seen, the Romanian political parties have failed to position themselves on the matter; to sum up the political will of the people; to deliver faithful ideology-driven policies. In doing so the political parties firstly have betrayed their constitutional goal (“Definition and expression of political will of the citizens”), secondly they have endangered parliamentary democracy (through the quickly and silent adopting of an important law), and thirdly they have proved complicit in the emergence of highly influential conservative political actors outside of the political scene such as the aforementioned conservative NGOs and the Romanian Orthodox Church. All of that happened based especially on the fear of losing electorate by getting public attention on the matter; as such, it lead to a disruption of the constitutional theory and reality in Romania through the minimization of the democratic role of political parties.
4. On a way to theocratic-alike constitutionalism
To understand this antagonism between constitutional theory and reality in Romania, one has to point out the active involvement of the Romanian Orthodox Church into state politics.
The Romanian Orthodox Church, such the other Christian-orthodox churches, fiercely opposes homosexuality, same-sex marriage or abortion. With the 2018 Referendum, the Church began to get involved in politics, spreading their views and supporting the anti-LGBT+ human rights movement by pursuing political propaganda in Sunday’s mass, by door-to-door activities, by sponsoring large billboards or by organizing TV-shows or events. Priests all over the country passed the orthodox political propaganda, and suggested that those who do not vote at the referendum to profess their faith are not true Christian-Orthodox believers.
Recently, the Romanian Orthodox Church has not only pushed for the Law No. 87/2020 to be approved, but they have also sent ultraorthodox candidates for the National Council for Combating Discrimination, and have taken an active stance against an anti-discrimination EU-project, as well as against the introduction of sexual education in the Romanian schools. Regarding the Law No. 87/2020, according to the church’s position, “the surrealist ideology of the fluid gender is radical and perverted opposed to the highest vision about humankind: the one described by Christian anthropology”.
Concerning constitutional theory, the current Romanian Constitution does not expressly separate the church and the state. Looking closely in the Romanian Constitution one may find the contrary: the church is actively involved in public matters. As such, Romania could be described constitutionally as a secular state, but not a laic state. By combining the failure of the Romanian political parties to discuss, debate and to take political stance in LGBT+ rights, with the activism of the Church in public matters, the results are obvious: an alarmingly growing political activism and political influence of the Romanian Orthodox Church.
This reality is not necessarily incompatible with the Romanian specific constitutional theory; it is however to be studied more deeply, as it could endanger the original Romanian constitutional democracy and rule of law through small theocratic-alike constitutional realities.
Summarizing, the lack and the misuse of political involvement of parties, the absence of proper parliamentary debates, as well as the Romanian Orthodox Church’s active political involvement in conjunction with private actors are two reasons why the Romanian anti-LGBT+ movement can be best described as a crusade.
The failed conformity between the Romanian constitutional theory and reality regarding the democratic role of the political parties indeed contribute in this aspect, which further endangers the rights of LGBT+ people in this country. A deeper constitutional analysis on the involvement of the Romanian Orthodox Church in politics is required.
In perspective, it appears there is an urgent need for the Romanian political parties to activate themselves as proper political actors, so they are able to uphold and exercise a fully functioning constitutional democracy. There appears also a need for Romanian orthodox political interests to be channeled into proper democratic forms of political parties, which would thus contribute to the separation of church and the state.