Taking Counsel: Lithuania's reaction to the judgement in the case of L vs Lithuania

  • 2009-01-28
  • By Akvile Mikelenaite [Jurevicius, Balciunas & Bartkus]
On Sept. 11, 2007, the European Court of Human Rights (ECHR) rendered a judgement in the case of L. vs Lithuania, and stated that Lithuania did not in a timely manner pass a law on gender reassignment as provided for in Part 2 Article 2.27, "Right to the Change of the Designation of  Sex," of the Civil Code of the Republic of Lithuania (hereinafter, CC), thus violating the right to privacy of transsexual L., who wishes to become a man, as provided for in Article 8 of the Convention. The ECHR obligated Lithuania to pass the required gender-reassignment legislation within three months of the present judgment becoming final (i.e. until March 31, 2008) or alternatively, to pay the applicant 40,000 euros in respect of pecuniary damage.

Furthermore, the current situation indicates that the Lithuanian legislative authorities took a different path. On March 19, 2008 the Seimas (Parliament) of the Republic of Lithuania registered a draft for the annulment of CC Article 2.27. It proposes canceling the provision establishing the right to gender reassignment.
The proposal is based on several arguments:
(i) the provision of the code currently in force stipulates unreasonable expectations;
(ii) assurance of the right to gender reassignment would result in problems regarding a lack of funds allocated for health care as well as a lack of specialists able to complete gender reassignment surgery (hereinafter, GRS);
(iii) persons who have had surgery would have to receive compensated expensive hormone treatment for the rest of their lives;
(iv) the Lithuanian general public has a very controversial opinion of GRS, due to psychosocial reasons it is not ready to accept gender reassignment; therefore, creating preconditions for gender reassignment in the situation of limited health care resources would evoke discontent among the majority of the population;
(v) such amendment to the CC would prevent such lawsuits being brought against Lithuania to ECHR.

We would present the following assessment of these arguments. First, it should be noted that adoption of the draft law would mean that Lithuania denies one of the constituent parts of the rights established by the Convention, thus demonstrating its attitude toward the Convention (it raises the question of whether it does not contradict Lithuania's obligations to respect human rights according to the Convention. If the issue reached the ECHR, it could be a reason to return to the issue already considered by ECHR regarding illicit manipulation with the text of the Convention in order to avoid liability hereunder*.). On the other hand, it would mean that Lithuania refuses to provide treatment to persons suffering from gender dystrophy (a psychic disorder). It could be interpreted as discrimination when compared to persons suffering from other diseases.

Second, contrary to statements in the explanatory notes to the draft, in the legal sense this amendment would be pointless 's not only would it fail to protect against potential litigation at the ECHR, it could even result in a new wave of litigation on an even larger scale. The jurisprudence of the ECHR is obligatory for Lithuania, and the ECHR has stated repeatedly that the right to gender reassignment is a constituent part of the conventional right to privacy (ECHR Article 8) and that personal identity, which is the underlying value of Article 8 and which is followed in the interpretations of this Article, "covers the right to identify identity details of particular persons."

Thus, even if the respective CC provision that repeats the specific conventional right is annulled,  the obligation of the state to respect and guarantee this conventional right (at least the recognition of the legal consequences of its implementation: to recognize the new gender, the right of the person with reassigned gender to marriage, social care, etc.) would remain. It is very likely that in the first case to reach ECHR after the CC amendment regarding issues of the implementation of the rights of transsexuals who had their gender reassigned in other countries (e.g. recognition of reassigned gender, the right to enter into marriage, to adopt children, etc.), Lithuania would lose. The most likely ECHR sanction for Lithuania would be a statement that it is necessary to adopt new legislation setting forth recognition of the respective legal consequences of gender reassignment.

While accepting the statement of the explanatory note that currently the citizens of the Republic of Lithuania are able to receive health care services in any Member State of the European Union, one may not ignore the prices of such services and other circumstances, e.g. the specifics of the treatment. It would limit the real possibilities to implement the right itself for Lithuanian citizens. Moreover, treatment of this argument of the explanatory notes could be even stricter 's as anti-human. Here comes a question: is the state obligated to respect its citizens or to deny them treatment?

If the amendment is really proposed for the purpose of public interest and meets it, it would give extra time by postponing regulation of the issue. But it would only give time, since, as already mentioned above, according to the ECHR practice, no public interest has priority when an individual right to gender reassignment is to be protected.

Besides, the explanatory notes confirm that the authors of the draft are not aware of the currently recognized and prevailing legal treatment of transsexuality.
Therefore, the above arguments confirm that the wish of certain Lithuanian Parliament members to ignore the judgement of the Strasbourg court could bring more negative than positive consequences for Lithuania.

*In the practice of ECHR such issue was raised regarding the interpretation of the terms "criminal offence," "criminal charge," criminal proceedings in  Para 1 Art 6, Art 7, Para 1 Art 4 of Protocol No 7. Having denied the possibility to manipulate the text of the Convention, ECHR eliminated the possibility of the states to manipulate administrative justice in contract to the criminal justice (it explained that although a committed act is not criminal according to the national laws, in order to apply Article 6 of the Convention, it is sufficient that the given offence is criminal by nature or the person who committed it would be subject to a sanction attributable to the criminal area).

Akvile Mikelenaite  is an associate advocate at Jurevicius, Balciunas & Bartkus, a member of Baltic Legal Solutions, a pan-Baltic integrated legal network of law firms including Glikman & Partnerid in Estonia and Kronbergs & Cukste in Latvia, dedicated to providing a quality "one-stop shop" approach to clients' needs in the Baltics.