The right to be accepted as you are: Towards legal gender recognition in Lithuania
Recent initiatives and new attitudes from Lithuanian institutions open a context where legal gender recognition for transgender people seems closer than ever.
By Sergio Mañero
In a meeting room of the Parliament of the Republic of Lithuania, a conference entitled “Prospects of securing transgender persons´ human rights in Lithuania” took place.
Among all the voices in the conference, one of them stood out, despite the fact that it was not in the official programme. That was the voice of Tovaldas; a transgender man who has undergone a legal process to achieve the fulfillment of his right to be recognized by society as what he feels and what he is, a man. “I want to live the life of a man that I desire. A full member of society” Tovaldas said.
“My gender identity was evident when I was a child, but nobody spoke”, Tovaldas continued. He started to tell his story in front of the audience. How, in 2010, after years of silence, he started to look for information about transgender people. When he found an article in the internet, he started a process of self-awareness which was followed by vindication of his right to be accepted as he is. Not an easy task in Lithuania, where according to an LGBT* Survey, carried out by the EU Agency for Fundamental Rights (FRA), 49% of the Lithuanian respondents said that they would feel totally uncomfortable working with a trans colleague, and 82% said they would feel totally uncomfortable if their children dated a trans person.
Transgender people are not born in the wrong bodies, they identify themselves with another gender than that assigned at birth. When they want to undertake their transition process, they face legal, medical and social barriers. Trans people have a variety of requirements about their bodies. These decisions are very personal, as each person is different. Tomas Vytautas Raskevičius is the Policy Coordinator of Lithuanian Gay League (LGL), an organisation that works for effective social inclusion and integration of the local LGBT* community in Lithuania. “Not everybody wants hormone or medical treatments. Some just want to change their Identity Document (ID)” Raskevičius says. Changing ID is what they would need to be recognised legally as who they are.
However, the reality in Lithuania is far from fulfilling the legal recognition of transgender people. In fact, there is a lack of regulation which is resulting not only in human rights violations, but also leading to contradictory circumstances.
Everything began back in 2001, when a new Civil Code of the Republic of Lithuania was adopted. According to the Article 2.27 of the Code, “(a)n unmarried natural person of full age enjoys the right to the change of designation of sex in cases when it is feasible from the medical point of view”. Therefore, the right to undergo a gender reassignment procedure was established, but it should be regulated by a separate law. The problem is that the Law on Gender Reassignment, 16 years later, has not yet been adopted.
So, despite the fact that the right to gender reassignment is in the Civil Code, there is no procedure for legal gender recognition. The result is that there is no regulation either for legal gender recognition and to medical gender reassignment. This contradictory situation forces transgender people to undergo gender reassignment treatment abroad. Then, their only possibility to demand legal gender recognition is through returning back to Lithuania and starting a litigation process in the national courts to get their ID changed.
Furthermore, transgender people need to undergo surgery (once again, abroad, as it is not facilitated by the Lithuanian National Health Care System) before going to the Lithuanian National Courts to demand the change to their documents. So, they not only have pay to undertake a litigation for their gender recognition, but they also need to be forcibly sterilized. Surgery is not an option, but a mandatory requirement. “The state may set medical requirements, however, these requirements may not result in sterilization” says Raskevičius.
In 2007, there was a relevant case in the European Court of Human Rights (ECHR). In 1999 a Lithuanian transgender man requested to be registered under his chosen male name, Linas, but it was rejected. Represented by the Human Rights Monitoring Institute, he brought a case to the ECHR for pecuniary damages, claiming that there was a mismatch between the Civil Code and the absence of the required Law. The ECHR concluded that this legal gap constituted a violation of the Article 8 of the European Human Rights Convention (the right to respect for private life) and claimed that the Government of Lithuania had to adopt the Gender Reassignment Law or, if it was not adopted, pay pecunairy damages.
Finally, the law was not adopted and Lithuanian State paid the damages. “The government was expecting that the problem would disappear, but it did not, because there are more trans* people in this country”, said Raskevičius. It has been 10 years since then, but the law has still not been adopted.
This reality is what made Tovaldas go to court. He contacted LGL, which supported him financially and provided legal assistance through the law firm Invoco (that applied reduced fees). Finally, he got the documents changed. They were expecting a long process, maybe 5 years, but it actually went quite quickly. They submitted the complaint in December 2016 and in 4 months they got a positive resolution. This has been a big achievement and also a huge change in Lithuanian jurisprudence, because for the first time in Lithuania, Tovaldas got legal recognition without undergoing the compulsory gender reassignment surgery. He was able to change his ID based on the psychiatric diagnosis alone. The decision became legally binding on June 2nd. “I was striving to defend my right”, Tovaldas said how he felt, and “I was successful”, he concluded.
But this is not the only news to be optimistic about. Changes are coming directly from the relevant institutions. On March 22nd, the Government of Lithuania ordered the Ministry of Health and the Ministry of Justice to draft a law on gender reassignment. Karolina Bubnytė, Lithuanian Government representative at the European Court of Human Rights, explained that there is a working group, with both Ministries working together on proposals to the drafting of the law.
This law will have a description of Health Care Services, such as hormone treatment, and the change of ID by administrative procedure. This group had its first meeting on May 26th, and although there has not been public communication, internal sources has confirmed us that there will be no requirement for the surgery for the reassignment process. “We are in the process of drafting a law on gender reassignment”, says Raskevičius.
These changes might have been triggered by the Council of Europe. In fact, Council of Europe has a special unit dedicated to sexual orientation and gender identity, SOGI. In 2015, the Parliamentary Assembly of the Council of Europe (PACE) adopted the Resolution 2048 on Legal Gender Recognition (LGR), which recommends the European states to ensure full legal capacity and change of name and gender marker. Evgenia Giakoumopoulau, Programme Advisor of SOGI, was present at the conference in Vilnius where Tovaldas told his story. “It is time for policy makers and legislators. Transgender people should not go through this litigation process”, she said.
As the Government of the Republic of Lithuania had ignored ECHR’s judgement in 2007, in 2014 the Council of Europe demanded the Government to report every 6 months on the progress it is making through the enhanced supervision procedure. “If it was not for this monitoring procedure, nothing would have been done”, says Raskevičius.
Furthermore, for the first time in the history of Lithuania, Aurelijus Veryga, the Ministry of Health, wanted to meet the trans* community, and he did in LGL’s office, on April 26. Despite the difficulties of passing the law through parliament, they established a list of priorities, having at the top the establishment of a way to get the diagnosis and to access hormone replacement therapy. With this, transgender people could go to the courts and change their documents.
With secondary legislation, such as an “Order by the Minister” saying, for example, that “gender identity disorder is treated in Lithuania by a mental health specialist and by endocrinologist by prescribing hormones”, they will solve the problem in a short-term, because transgender people would have access to hormone treatment and they will not need to undergo compulsory sterilization. As Raskevičius says, this is not the ideal law, but at this stage, it would be enough.
However, despite Tovaldas’ success in getting his legal gender recognition, he is still facing many social and administrative barriers. He described a situation in which he was in a bus, and had a discount ticket because he was a student. When the bus driver asked Tovaldas for his documentation, the bus driver did not believe that the student card belonged to him because the data in it did not match Tovaldas´ actual physical appearance, and he was accused of stealing it. In order to prove his point, Tovaldas had to show his other IDs to the bus driver and to face public humiliation.
Situations like this occur all too frequently. Pete is a UK citizen who decided to start his gender reassignment process in his fifties, while he was living in Lithuania (he lived here from 2001 to 2009, and a few months ago he returned). In the UK it is very easy to get a document to get your name changed, just by filling in an administrative document. But Pete was born in Germany, and he needed to change his birth certificate and his ID. In order to do so, he needed a gender recognition certificate from the UK Gender Recognition Panel (GRP). “I needed to go to the UK and see a general practitioner (doctor) and a psychiatrist, and then submit all reports and other documents to the GRP”, says Pete.
As Pete had been working as a freelancer for a long time, he needed to get changed his identity on every employer reference of his career. Working as a sub-contractor for EU projects, this required references every past employer or contractor. Some employers were quite reluctant, and in at least one case he had to threaten a lawsuit. The last problem was in Lithuania, in order to change his Asmens Kodas (personal code in Lithuania, which also identifies people as men or women). He went to the migration authority to change the name on his residency permit, but they refused to do so. Not only that, they also confiscated his permit from him. Pete then submitted a complaint to the Ombudsperson of the Republic of Lithuania, who upheld his case and thus helped him to get his personal code fixed, and the residence permit to be reinstated.
Pete and Tovaldas have succeed in getting their birth certificates changed, but this is not the case for many Lithuanian transgender people. Simas, who is living in the UK, could, like Pete, change his name very easily in the UK. But he still finds problems when he wants to work, because he has to show his birth documents and many people are confused and do not understand what trans* means. However, he can work and study in Britain with these new documents, and in fact he does.
When Simas finishes his studies, his degree is going to hold his name. But this degree is going to be valid only in England, because he is legally Simas only in England. Since undergoing hormone treatment in the UK, Simas has only visited Lithuania once. “If I am travelling home, I have a lot of problems”, like in the airport. When he was coming back to Lithuania, Simas had to show his ID at the security checkpoint in the airport. He had decided to wear as much clothes as possible and try not to speak. “The security man looked at me, and I looked at him, and he goes: how are you? And I said: I am good. When he read my name and heard my voice he got all confused. He did not know what was happening”, Simas said.
Then, Simas started to explain that he had his name changed in the UK, and had a document to prove it, and that he was a trans man, but the security man did not know what that meant. “For the first time in my life, with that man, to be honest, I had a good experience”, Simas says, “he did not even say my birth name, not even a single time”, and finally, he let him go. But this is not the only problem that Simas faced. Even buying cigarettes did not go without incident. When he showed his ID, the staff at the shop thought that it was not him, and that he had stolen it. Most of the time, they ask for people to come over, “and here I am, while they try to decide if it is my ID or not”, Simas says.
Despite these circumstances, and due to the latest news, it is reasonable to think that there is now a much more favorable scenario for the fulfillment of the rights of transgender people than just a year ago. Lithuania is undertaking changes in social policies towards the recognition of the identity of transgender people, triggered by civil society pressure, from organisations like LGL and trans* community pressure. “LGL is fighting for the trans* persons to obtain a change of ID supported only with a diagnosis from a psychiatrist”, says Raskevičius. “This is the decision that we made, after talking with the trans community. Diagnosis is a pathologization of identity and we do not agree with this, but according to the current situation, we do not think we can avoid it. Maybe at some point in the future we will start talking about the depathologisation”, he says.
According to Transgender Europe, TGEU, an organization which works for the equality of all trans people in Europe, the ideal gender recognition law is simple, based solely in the self-determination of the person or applicant, without waiting process. TGEU have developed a Legal Gender Recognition in Europe Toolkit, where good practices and policy recommendations are offered. According to it, the best examples come from Denmark, Malta and Ireland. In these countries, any person can get legal gender recognition in two days, through an administrative procedure; simply through filling in a form.
2017 could be the year when,16 years after the new Civil Code was adapted, and 10 years after the ECHR resolution, things are starting to change in Lithuania. Organizations defending trans* people´s human rights and trans* community are optimistic. Tovaldas ended his speech at the Parliament Conference by saying: “I wish everyone to be brave in going forward because times are changing for the better”.