European Court of Human Rights (ECHR) in Strasbourg delivered its judgment in the case of L v. Lithuania. ECHR stated that while Lithuanian law had recognised transsexuals’ right to change not only their gender but also their civil status, there was a gap in the law regulating full gender reassignment surgery which created an impediment for the transsexual person to complete this process and therefore Lithuania violated Article 8 (right to respect of private and family life) of the European Convention of Human Rights.
Lithuania, in order to meet L’s claim for pecuniary damage, is to adopt the required subsidiary legislation to Article 2.27 of its Civil Code on gender-reassignment of transsexuals within three months of the judgment becoming final. Should those legislative measures prove impossible to adopt within three months of the judgment becoming final, ECHR would award L 40,000 euros in respect of pecuniary damage. L was also awarded EUR 5,000 in respect of non-pecuniary damage.
In 1997 the applicant was diagnosed as a transsexual. A consecutive treatment for a few years, including the partial gender reassignment surgery, was abrupted because of the absence of a law that had to be passed four years ago. For the same reason the change of his civil status has also been blocked.
Consequently, the applicant found himself in the intermediate position of a pre-operative transsexual, with certain important civil status documents having been changed, but his personal code remaining that of a woman thus causing serious distress in significant situations of his private life, such as employment opportunities or travel abroad.
ECHR emphasized that whilst budgetary restraints in the public health service might have justified some initial delays in implementing the rights of transsexuals under the Civil Code, over four years have elapsed since the pertinent provisions came into force and the necessary legislation, although drafted, has yet to be adopted. Given the few individuals involved, the budgetary burden on the State would not be expected to be unduly heavy.
Following the release of the judgement, Henrikas Mickevičius, HRMI Executive Director, and Jolanta Samuolytė, the Research Director, presented it to the media at the press conference.
“The state has violated the positive obligation to ensure respect for private life, including respect for human dignity and the quality of life in certain respects. Lithuania did not take adequate action to protect the transgender person from humiliation, misery and suffering,” explained Henrikas Mickevičius.
He emphasized that ECHR very rarely specifies how and during what period a violation should be remedied. “Quite likely this has been influenced by the long-dragged noncompliance of Lithuanian government with the previous ECHR decision in the case Dziautas and Sidabras vs. Lithuania. Apparently, our government is mistrusted,” said the Executive Director.
Jolanta Samuolyte emphasized that majority of European states have passed the gender reassignment laws awhile ago. Current discussons focus on the issue of when to recognize a person having changed his or her gender – after the full surgery, after the partial surgery or it is sufficient that he or she went through non-surgical treatment and complies with certain social criteria.
HRMI represented L during proceedings at the ECHR. Henrikas Mickevicius represented L at the oral hearings in October 2006.
Full judgement is available on website of the European Court of Human Rights.
See more about the press conference (in Lithuanian) in the news portals Delfi, Alfa and Balsas.lt
© 2012 Human Rights Monitoring Institute