Transgender rights in Lithuania – The European Convention as a catalyst for change
/By Tomas Vytautas Raskevičius of the Lithuanian Gay League and Nigel Warner of ILGA-Europe
In this article we show how, in recent years, a combination of European Convention cases and advocacy at national and Strasbourg levels[1] is moving forward the debate on the rights of trans persons in Lithuania, a country where political and faith-based opposition is such that any progress for long seemed impossible.
The right of trans persons to legal recognition of their gender identity[2] (‘legal gender recognition’) was finally acknowledged by the European Court of Human Rights (ECtHR) in 2002 in two cases where the UK was required to change the gender of the applicants on their birth certificate, and permit them to marry a person of the gender opposite to their reassigned gender.[3] At that time a requirement for trans persons to undergo gender reassignment (generally taken to include being rendered infertile) as a pre-condition for legal gender recognition was the norm in Council of Europe member states, regardless of whether desired by the individual concerned. Since then such a requirement has come to be seen as a serious human rights violation, condemned at the Council of Europe by the Commissioner for Human Rights in 2009 and by the Parliamentary Assembly in 2013.[4] However, as we shall discuss further below, it is only in recent months that the European Court of Human Rights has had an opportunity to rule on this.
Social campaign #TRANS_LT by the National LGBT* rights organization LGL. Photo credit: LGL
Back in 2000 Lithuania’s Civil Registration Rules permitted “a change of civil status documents”, but only following gender reassignment. In 2001 a new Civil Code supplemented this by confirming that an unmarried adult had the right to gender reassignment. However the subsidiary legislation needed to implement this right was never adopted due to opposition in parliament and by the Catholic Church. Without access to gender reassignment there could be no legal gender recognition. In 2007, in L v. Lithuania, the European Court of Human Rights found this situation to be a violation of the right to respect for private life.
The applicant in L v. Lithuania had taken his case at a time when the capacity of local NGOs to advocate for the introduction of gender reassignment treatment was very limited. In the absence of such advocacy, and relegated to the Committee of Ministers’ “standard” execution of judgments procedure,[5] the case lay dormant at Strasbourg until 2013 when the Lithuanian authorities finally submitted an Action Plan. Implicitly acknowledging the difficulty of persuading Parliament to adopt the necessary subsidiary legislation, it proposed repealing the requirement for this legislation, and introducing two separate initiatives: a simplified procedure for changing entries in official documents; and a request to the medical profession to develop reassignment treatment procedures. While the former was a welcome proposal, the latter was not. Hostility to trans rights in the medical profession was such that there was no guarantee that the procedures would be forthcoming if merely voluntary. Moreover, the need was not just for written procedures, but for suitable medical facilities. And, just as seriously, the proposals maintained the requirement that legal gender recognition be conditional on gender reassignment.
Even these defective proposals met with strong opposition. In May 2013 the Lithuanian Parliament gave initial approval to a draft bill (supported by the Catholic Church) which proposed banning gender reassignment surgery altogether.[6]
Staff members and European Voluntary Service volunteers of the National LGBT* rights organization LGL. Photo credit: LGL
Given the slow progress on the case, and the fact that it affected the rights of all trans persons seeking legal gender recognition in Lithuania, the Lithuanian Gay League (LGL) and its partners began advocating that L v. Lithuania be the subject of increased scrutiny by the Committee of Ministers through “promotion” to the enhanced execution of judgments procedure. A joint hearing by the Parliamentary Assembly’s Legal Affairs and Human Rights and Equality and Non-Discrimination Committees in January 2014 provided an opportunity to make the case to a wide audience. In September 2014 L v. Lithuania was moved to the enhanced supervision procedure.
This prompted the Lithuanian authorities to make more serious efforts. In January 2015 a working group led by the Deputy Minister of Health (consisting of professors of medicine, officials of the Ministries of Health and Justice as well as the Government Agent) was set up. It heard independent experts and NGOs, including LGL and the Human Rights Monitoring Institute (HRMI) . However the proposal then developed by the Ministry of Justice ignored their input, continuing to require gender reassignment as a condition of acquiring legal gender recognition and failing to allow for the provision of healthcare services. Moreover, as a result of divisions within the government the bill was not even presented to Parliament.
In May 2016 the Lithuanian Government Agent organised a public consultation requesting views on whether gender reassignment should or should not be a precondition for legal gender recognition. The majority of replies supported the latter proposition. The following month she organised a roundtable bringing together ministries, the equal opportunities ombudsman, academics, the Catholic bishops, and LGL and HRMI. It was clear from the viewpoints expressed that no compromise meeting the interests of all the stakeholders could be found.
In June 2016 the Committee of Ministers expressed its concern that after more than eight years the judgment still had not been implemented.
Ensuring that any legislation eventually adopted does not require gender reassignment as a precondition for legal gender recognition remained of particular concern for LGL and its partners. The L v. Lithuania judgment had been silent on this question. LGL’s submissions to the Committee of Ministers argued that in view of other Council of Europe policy on the subject (referred to above), such a requirement should be ruled out. However, there was no indication that the Committee of Ministers would support this position.
Accordingly, in December 2016 LGL opened a new front, initiating cases in the domestic courts on behalf of two trans men challenging the requirement for reassignment surgery. The timing was perfect. Just four months later, in April 2017, the European Court of Human Rights delivered its historic decision in the cases of A.P., Garçon and Nicot v. France, ruling for the first time that such a requirement violated Article 8 of the Convention. In their subsequent judgments, the Lithuanian courts followed the ECtHR’s lead. While their judgments do not of themselves establish binding precedents, they mark the beginning of what is hoped will become a judicial standard. Such a standard, combined with the newly adopted position of the ECtHR should ensure that the requirement for gender reassignment will be dropped in future legislation on legal gender recognition.
In parallel with these developments, the government has instructed the Ministry of Justice and the Ministry of Health to prepare draft legislation on a gender reassignment procedure. While it is too early to predict how this will develop, the authorities appear more receptive to input and involvement by the trans and NGO communities than was the case during the development of the previous legislative proposals in 2015.
[1] The NGOs involved in this advocacy work are the Lithuanian Gay League, the Human Rights Monitoring Institute, Transgender-Europe, and ILGA-Europe.
[2] Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body and other expressions of gender, including dress, speech and mannerisms.
[3] Christine Goodwin v. UK, I. v. UK
[4] Commissioner for Human Rights – Issue Paper on Human Rights and Gender Identity (2009); Parliamentary Assembly Resolution 1945 (2013)1 - Putting an end to coerced sterilisations and castrations
[5] Under the execution of judgments process there are two modes of supervision: “standard” and “enhanced” supervision. Resolution of cases under the “standard” procedure is left to a dialogue between the execution of judgments department and the state concerned. For a case to be considered under the “enhanced supervision” procedure, which involves full and regular review by the Committee of Ministers, a case must be deemed to face either “structural” or “complex” problems.
[6] This bill did not proceed further.