Catalysts of Change: The Case for the Pro-LGBTQ+ Legislation Spurred by the War in Ukraine

/ Foreign Law, LGBTQ+ Rights / By

Amy Herd*1

I. Introduction

The Russian invasion of Ukraine on February 24th, 2022 triggered a vicious conflict that quickly morphed into a grinding war of attrition. With civilian casualties totaling 16,150 on October 24, 2022, soldiers and citizens alike have been forced to grapple with the reality that they and their loved ones’ lives are in near-perpetual danger.2 This imposed cognizance of mortality has brought many Ukrainians to terms with the grim fact that their partners and family may either become persons hors de combat, go missing, or be killed in action. As a result, family members of soldiers have had to familiarize themselves with their rights under martial law regarding visitation and collection of dead family members’ bodies. For LGBTQ+ Ukrainians, however, these rights do not exist—a reality that has spurred activists into action, with a petition drafted in June 2022 calling for the immediate legalization of same-sex marriage quickly garnering over 28,000 signatures.3 The swift surpassing of the 25,000 signatures required to trigger an automatic review by Wartime President Volodymyr Zelenskyy, combined with Zelenskyy’s subsequent pledge to look into legalizing same-sex civil partnerships, sparked new hope that Ukraine could soon take a necessary and major step towards equality for its LGBTQ+ citizens.4 This Note will document a brief overview of current legal protections for LGBTQ+ citizens and soldiers in Ukraine, explain the proposed legislation introduced to President Zelenskyy, and examine the challenges it must overcome to be enacted. This Note will then explore the importance of equal rights for LGBTQ+ soldiers in Ukraine and will ultimately argue that the legalization of same-sex civil partnerships in the context of the war effort is not only beneficial, but also necessary, and will ultimately serve to set a precedent for progressive human rights legislation in Ukraine.

II. Current Legal Restrictions and Protections for LGBTQ+ Citizens in Ukraine

Legal protections and rights for LGBTQ+ Citizens in Ukraine are remarkably marginal, with little codified support for same-sex couples existing beyond a handful of laws that many have condemned for their enactors’ ulterior motives. While same-sex activity has been legal since Ukraine declared independence in 1991,5 same-sex marriages and civil partnerships are not recognized by the government, as the Constitution of Ukraine defines marriage strictly as a union between a “man and a woman.”6 Furthermore, Chapter 18, Article 211 of the Family Code of Ukraine explicitly bans same-sex couples from adopting children, stating that prospective adopters “cannot be persons of the same sex.”7 While some legal protections do exist, including a 2015 law that banned discrimination based on gender and sexual identities in the workplace,8 such protections were often passed with purposes other than ensuring the safety of LGBTQ+ citizens in mind.9

In the case of the former example, such a law was passed to satisfy a requirement set for Ukraine by the European Union (EU) to ensure it met the necessary standards for entry into its visa liberalization action plan, which would provide citizens with visa-free access to the EU.10 Even with the alternative intentions, however, the bill was extremely controversial. Immediately prior to the vote, Volodymyr Groysman, chair of the Verkhovna Rada—Ukraine’s unicameral parliament—spoke out against same-sex marriage, warning that the Rada will never back LGBTQ+ unions.11

A. Legal Protections for LGBTQ+ Soldiers

Although anti-discriminatory practices are profoundly controversial in Ukrainian politics and legislation, homosexuality is not an explicit reason for exemption from Ukraine’s compulsory military service requirement for men.12 Rather, eligibility for enlistment is decided on a case-by-case basis, in which regional enlistment commissions evaluate the candidate’s characteristics and subsequently decide whether he should be called up for a fixed period, granted postponement, or released from compulsory conscription.13 On the battlefield, however, the disparity between LGBTQ+ and heterosexual soldiers’ rights becomes far more observable. Per the Ukrainian Ministry of Defense regulations, the military is obligated to inform the parents, spouse, and other close relatives of a soldier if they are killed in action.14 Currently, only family members have visitation rights for injured soldiers, and only family members can collect remains and death benefits from the state.15 Thus, because marriage in Ukraine can only legally be between a man and a woman, LGBTQ+ soldiers cannot visit their partners in hospitals or collect their remains.16 Evidently, there is a dangerous lack of legislation codifying equal rights for the LGBTQ+ citizens and soldiers of Ukraine—a reality that is especially disconcerting in the context of war and is indicative of a greater, underlying epidemic of anti-LGBTQ+ sentiment that must be remedied with progressive legislation.

III. Proposed Legislative Reforms

The inability of LGBTQ+ soldiers to visit their partners and collect their bodies triggered a new wave of pro-LGBTQ+ activism in Ukraine.17 Olexander Shadskykh, a 23-year-old army combat medic, had expressed fears that his boyfriend might not find out in time to attend his funeral if he were to be killed.18 Many of his comrades share his worry.19 Such fears, combined with the indignation of pro-LGBTQ+ citizens and activists, are propelling efforts to legalize same-sex marriage in Ukraine forward.20 The petition calling for equal rights for heterosexual and LGBTQ+ Ukrainians, which surpassed the minimum 25,000 signatures required to trigger an automatic review and response by the president within ten days of its delivery, is the most recent and prominent example of Ukraine’s new wave of pro-LGBTQ+ sentiment.21 The petition argues that, in a country ravaged by war, “every day can be the last,” and that same-sex couples deserve the opportunity to “start a family and have an official document to prove it.”22 The author of the petition, Anastasia Sovenko,23 explained how she felt compelled to take action after reading an article that mentioned heterosexual couples fast-tracking the marriage process in order to ensure they would receive word if either were to die or be injured on the frontlines.24 Voicing her anger towards the fact that same-sex couples did not have the opportunity to do the same, Sovenko stated:

They won’t be able to visit their soul mate in the hospital if something happens…If they have a child, then the child will be taken from the parent who’s still alive if it’s not a mom who gave birth. Because for the law they aren’t relatives. They are just two strangers. And this just could be the last one opportunity in their lives to get married.25

Upon receiving the petition, Zelenskyy affirmed that democracy in a modern world should be measured, among other things, by the willingness of the state to ensure equal rights for all its citizens.26 His response sparked hope in many proponents of the petition and of progressive LGBTQ+ legislation, but also acknowledged a series of difficulties that Ukraine would have to overcome to achieve marriage equality.27

A. Legislative Challenges

The primary difficulty in legalizing same-sex marriage in Ukraine lies in the fact that the change would require a Constitutional Amendment, and a change to the Ukrainian Constitution cannot be made during wartime.28 Recognizing this limitation, Zelenskyy proposed a compromise to Prime Minister Denys Shmyhal, requesting that he look into legalizing same-sex civil partnerships.29 According to Zelenskyy, Ukraine has already “worked out options” for legalizing these civil unions as part of a plan to join the EU.30 However, both political and societal stigmatization, as well as widespread discrimination towards LGBTQ+ people, makes the matter one of extreme difficulty. A heavily Eastern Orthodox country, Ukraine is historically less accepting of the LGBTQ+ than its western neighbors, as demonstrated by a 2019 Pew Research Poll in which 69% of Ukrainians indicated that homosexuality should not be accepted by society.31 Political opponents of same-sex marriage, such as the aforementioned Groysman, only further complicate the path forward. Additionally, the historically vitriolic reception of previous pro-LGBTQ+ bills sets a grim precedent for future LGBTQ+ legislation. Bill 5488,32 designed to expand anti-hate crime legislation, was expected to be met with fierce backlash before its review was halted by the outbreak of the war.33

Beyond the sociopolitical and legal hurdles that a Constitutional Amendment to legalize same-sex marriage would have to overcome, the question of whether or not legalizing same-sex marriage is one of the most pressing issues in Ukraine still remains. Ravaged by a war that shows no signs of ending anytime soon, Ukraine will have to spend years rebuilding its infrastructure, economy, and population, provided it survives the war at all. While legalizing same-sex civil partnerships will likely provide a morale boost to troops and activists in the short term, it is far more likely that same-sex marriage will be shelved until more prevalent political problems are addressed. However, another reality could prevail: to join the EU, Ukraine must conform to the Copenhagen Criteria, which states that members must have stable institutions that guarantee “democracy, the rule of law, human rights, and the respect and protection of minorities.”34 Having recently been granted official EU candidacy, Ukraine must now enact a series of reforms if it truly wants to ascend to full membership as quickly as possible.35 Increasing LGBTQ+ rights falls under these requirements, and thus change may be in order sooner rather than later. For LGBTQ+ Ukrainians, the aforementioned reforms are not only beneficial, but also necessary. With the number of casualties rising by the day in a war that has no end in sight, swift, legal action is required to ensure that they can maintain contact with—or at least receive information regarding the whereabouts of—their partners and spouses.

B. Potential Implications and Consequences

The most relevant and immediate effect of legalizing same-sex civil partnerships is that soldiers and family members would be granted visitation rights for their spouses, as well as the right to collect their remains and receive death benefits.36 Additionally, pro-LGBTQ+ legislation could serve to boost morale among LGBTQ+ soldiers, who might feel as though they are fighting for a country that values them more so as equal citizens now than it did in the past. Beyond the immediate impacts, however, the passing of more pro-LGBTQ+ Bills and Amendments—especially one that enshrines the right to same-sex marriage in the Constitution of Ukraine—could continue to set a precedent for progressive legislation in a country whose minority communities are in need of increased legal protections. While Ukraine already has the “least aggressive track record of government-sponsored LGBTQI discrimination” out of the three other nations in its immediate neighborhood—Russia, Poland, and Hungary—and is reportedly “becoming the most welcoming nation in the region,” additional action to codify anti-discriminatory legislation will serve to ensure future generations enjoy far more equality than their predecessors.37 The adoption of pro-LGBTQ+ legislation will work to develop the increasingly accepting attitudes towards people of varying sexual and gender identities, therefore creating a more welcoming culture and environment for queer-identifying Ukrainians—an environment that is crucial to have, especially in a nation where instability and fear have become core parts of day-to-day life. Once the right to same-sex marriage is solidified, Ukrainians will also be able to turn their attention to other issues of civil and social importance, including, but not limited to: legalizing same-sex adoption, expanding anti-hate crime legislation to cover attacks motivated by gender and sexual identity, combatting widespread domestic violence against women, and enacting measures to reduce discrimination against the Roma community.38

IV. Conclusion

The legalization of same-sex civil partnerships—and eventually same-sex marriages—is a vital step in ensuring equal rights for Ukrainian citizens, as the nation navigates turmoil brought about by war. While the actual process of legalization will undoubtedly be extremely difficult and is likely to turn into a years-long process due to governmental opposition and the need to tackle issues brought about by the war, increasing pro-LGBTQ+ sentiments in society bodes well for the future of progressive legislation in Ukraine.39 The simple sight of LGBTQ+ people in uniform fighting back against Russian soldiers is reportedly helping to foster an environment of sexual acceptance, a phenomenon that gives hope to activists who have been working towards this achievement for decades.40 The Kyiv International Institute of Sociology released a 2022 study indicating that homophobia is continuing to decline, with only 38.2% having a negative view of LGBTQ+ Ukrainians, down from 60.4% in a 2016 study by the same institution—compounding the hopes of activists and community members alike that their country is growing to accept them.41 Additionally, the presidency of Volodymyr Zelenskyy, who, when pressed to denounce the LGBTQ+ community in 2019, responded, “We all live in an open society where each one can choose the language they speak, their ethnicity and orientation. Leave those people alone, for God’s sake!” gives hope to those pursuing equality.42 Still, there are many obstacles to overcome before a constitutional change can be made to solidify equal marriage rights. Undoubtedly, the extent to which time and resources can be allocated to pro-LGBTQ+ legislation and amendments will be the most challenging once they can be considered. Political opposition and anti-LGBTQ+ sentiment will also be a steep hill to climb. But if the will of its activists is as strong as the will of its soldiers, the needs and rights of LGBTQ+ Ukrainians may be given the protections they deserve—perhaps even sooner than we expect.

  1. *B.A. Candidate for International Studies and History, Fordham College at Rose Hill, Class of 2025. I am grateful for the opportunity to write for the Fordham Undergraduate Law Review and give my thanks to the Editorial Board, for this Note could not have been published without their guidance and contributions. I owe a debt of gratitude to Mrs. Jennifer Stockdale and Mrs. Kelly Brandes, who encouraged me to follow my passion in the law, as well as my professors and mentors who have pushed me to research topics I am passionate about. Lastly, I would like to dedicate this Note to the citizens and soldiers of Ukraine, who continue to fight tirelessly to preserve the lives of their people and their country. Слава Україні.
  2. Ukraine: Civilian Casualty Update 24 October 2022, United Nations Human Rights, Office of the High Commissioner (Oct. 24, 2022), https://www.ohchr.org/en/news/2022/10/ukraine-civilian-casualty-update-24-october-2022.
  3. Sophie Williams, Ukraine to consider legalising same-sex marriage amid war, British Broadcasting Corporation, 12 July 2022, at 1.
  4. Maham Javaid et al., War Spurs Ukrainian Efforts to Legalize Same-Sex Marriage, The New York Times (Aug. 2, 2022), https://www.nytimes.com/2022/08/02/world/europe/ukraine-gay-marriage.html.
  5. Andriy Maymulakhin et al., Ukrainian Homosexuals and Society: A Reciprocation: Review of the Situation: Society, Authorities and Politicians, Mass-Media, Legal Issues, Gay-Community, 63 Nash Mir Ukrainian Homosexuals and Society Report 82 (2007).
  6. Const. of Ukraine, chap. 2. SS 51.
  7. Family Code of Ukraine, chap. 18. SS 211. Chapter 18, Article 211 of the Ukrainian Family Code.
  8. Labor Code of Ukraine, chap. 1. SS 2-1.
  9. Johannes Wamberg Anderson, Ukraine Finally Passes Anti-Bias Law, a Prerequisite for Visa-Free Travel to EU, Kyiv Post (Nov. 12, 2015) https://web.archive.org/web/20151112162819/http://www.kyivpost.com/content/kyiv-post-plus/ukrainian-finally-passes-anti-bias-law-a-prerequisite-for-visa-free-travel-to-eu-401906.html.
  10. Id.
  11. Ukrainian Parliament Will Never Back Same-Sex Marriages—Speaker, Interfax Ukraine (Dec. 11, 2015), https://en.interfax.com.ua/news/general/303355.html.
  12. Maymulakhin et al., supra note 3, at 81.
  13. Id.
  14. Javaid et al., supra note 2.
  15. Yu-Hsiang Wang, We’re Breaking Stereotypes: LGBT+ Soldiers Hope Ukraine Moves Towards Same-Sex Marriage, France24 (Aug. 9, 2022) https://observers.france24.com/en/europe/20220809-we-re-breaking-stereotypes-lgbt-soldiers-hope-ukraine-moves-towards-same-sex-marriage.
  16. Id.
  17. Javaid et al., supra note 2.
  18. Id.
  19. Id.
  20. Id.
  21. Ramsha Afridi, Legalizing Same-Sex Marriage to be Debated by Ukrainian Government Following Petition, Kyiv Post (July 13, 2022), https://www.kyivpost.com/ukraine-politics/legalizing-same-sex-marriage-to-be-debated-by-ukrainian-government-following-petition.html.
  22. Id.
  23. Anastasia Sovenko, aged 24, is an English teacher from Zaporizhzhia, a southern Ukrainian city. She identifies as bisexual. See Michael Levenson, Zelenskyy Says Ukraine’s Government May Allow Civil Partnerships for Same-Sex Couples, The New York Times (Aug. 2, 2022), https://www.nytimes.com/2022/08/02/world/europe/zelensky-same-sex-marriage.html.
  24. Javaid et al., supra note 2.
  25. Id.
  26. Bryan Pietsch, Zelensky Floats Civil Unions Amid Gay Marriage Push in Ukraine, The Washington Post (Aug. 4, 2022), https://www.washingtonpost.com/world/2022/08/04/ukraine-zelensky-gay-marriage/.
  27. Id.
  28. Const. of Ukraine, chap. 13. SS 157.
  29. Pietsch, supra note 24.
  30. Id.
  31. Jacob Poushter et al., The Global Divide on Homosexuality Persists, Pew Research Center (June 25, 2020), https://www.pewresearch.org/global/2020/06/25/global-divide-on-homosexuality-persists/.
  32. Code of Ukraine on Admin. Offenses and the Crim. Code of Ukraine on Combating Manifestations of Discrimination, chap. 1. SS 2-1 (proposed amend. 2021). http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?id=&pf3511=71891.
  33. Adrian Hoefer et al., Ukraine Offers Hope in an Increasingly Homophobic Neighborhood, Atlantic Council (June 24, 2021), https://www.atlanticcouncil.org/blogs/ukrainealert/ukraine-offers-hope-in-an-increasingly-homophobic-neighborhood/.
  34. Stipulation 7-III, Conclusions of the Presidency, European Council in Copenhagen (June 21-22, 1993). https://www.consilium.europa.eu/media/21225/72921.pdf.
  35. Matthias Matthijs, Ukraine Could Become an EU Member. What Would That Mean? Council on Foreign Relations (June 28, 2022), https://www.cfr.org/in-brief/ukraine-could-become-eu-member-what-would-mean.
  36. Javaid et al., supra note 2.
  37. Hoefner et al., supra note 31.
  38. Everything You Need to Know About Human Rights in Ukraine, Amnesty International (2021), https://www.amnesty.org/en/location/europe-and-central-asia/ukraine/report-ukraine/.
  39. Javaid et al., supra note 2.
  40. Id.
  41. Сприйняття ЛГБТ людей та їх прав в Україні: Аналітичний звіт (Perception of LGBT People and Their Rights in Ukraine: Analytical Report), Kyiv International Institute of Sociology (May 2022). Translated from Ukrainian.
  42. Afridi, supra note 19.
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