Procedural Posture
The Medical Expert Commission of the State Health Institution “Dorozhnaya Policlinika” [Railway Clinic] had declared the applicant professionally unfit. The applicant brought a civil action against the Railway Clinic to have the decision declared unlawful and oblige the defendant to issue a new decision. The applicant was represented by the Mental Disability Advocacy Center, an international NGO based in Budapest.
Facts
In 1992, the applicant was diagnosed with “perverse psychopathy”. This diagnosis was based on his sexual orientation, since homosexuality was, at that time, considered a “mental disorder” in the Soviet Union.
In 1999, the Ministry of Health of the Russian Federation obliged all medical professionals to use the World Health Organization’s International Classification of Diseases (ICD-10) as the basis of diagnosis. The ICD-10 had ceased to classify homosexuality as a mental disorder in 1992. In 2003 the applicant had his entry in the psychiatric registry of the local psychiatric clinic deleted. However, the military registration office refused to cancel his diagnosis and confirmed that the office still considered him unable to serve in the army because of his homosexuality, which they had re-classified as “other disorders of sexual identity”.
On 6 February 2003, the applicant underwent an examination by the medical expert commission in order to enrol on a course for passenger train guards. He presented both his military card and a certificate from a psycho-neurological clinic certifying the absence of mental disorders.
The commission declared him professionally unfit on the basis of his military card which stated that he had a limited ability to serve in the military under Article 7b of the 1987 Nomenclature of Disorders (“psychopathy”).
Issue
Whether the applicant’s sexual orientation made him professionally unfit.
Domestic Law
Civil Procedure Code, Article 3.
Labour Code, Article 213 (Medical Examinations of Some Categories of Employees).
Law on Psychiatric Care (appendix to the regulations of military medical examination), Article 6 (limitations on performance of certain types of professional activities and activities related to potentially dangerous activities), and Article 48 (judicial grievance procedure).
1987 Nomenclature of Disorders, Article 7 (Psychopathy).
Reasoning of the Court
The Court first reviewed the facts of the applicant’s case. When undergoing a medical examination ordered by the military registration office in 1992, the applicant had been diagnosed with a mental disorder (“perverse psychopathy”). The Court accepted the testimony of a specialist, Dr. Dmitry D. Isaev, that this diagnosis was based exclusively on the applicant’s declaration of homosexual orientation. This, according to Dr. Isaev, was grounded in the former understanding of homosexuality as a pathological condition and a mental disorder. However, homosexuality was no longer considered a mental disorder since Russia had adopted the International Statistical Classification of Diseases and Related Health Problems in 1997. Therefore, the Court concluded, at the time of his medical examination in 2003 the applicant had no recognised mental disorder.
The Court next considered the requirement of medical examination prior to employment under Article 213 of the Russian Labour Code and Article 6 of the Law on Psychiatric Care, under which a person could be declared professionally unfit for certain types of professional activities on grounds of mental disorder. The psychiatric contra-indications to carrying out work directly related to railway traffic were introduced by a governmental order in 2000. However, the Court emphasised that the applicant had no contra-indications on the date of his medical examination by the Railway Clinic. It therefore rejected the defendant’s argument that the entry in the military card referring to the 1992 diagnosis was a ground for declaring the applicant professionally unfit.
Having restated that homosexuality was not a mental disorder, and therefore the applicant had no mental condition making him professionally unfit, the Court allowed his claim and declared unlawful the decision of the Railway Clinic.
P v. State Health Institution “Dorozhnaya Policlinika of Oktyabrskaya Railways” – Russian (full text of judgment in Russian, PDF)
P v. State Health Institution “Dorozhnaya Policlinika of Oktyabrskaya Railways” – English (full text of judgment in English, PDF)