SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 27527/03
by L. against Lithuania
The European Court of Human Rights (Second Section), sitting on 6 July 2006 as a Chamber composed of:
MrJ.-P. Costa, President,
MrA.B. Baka,
MrR. Türmen,
MrM. Ugrekhelidze,
MrsE. Fura-Sandström,
MsD. Jočienė,
MrD. Popović, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 14 August 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr L., is a Lithuanian national who was born in 1978 and lives in Klaipėda. Following his request and the decision of the President of the Chamber, the applicant’s identity is confidential. The applicant is represented before the Court by Mr H. Mickevičius, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) are represented by their Agent, Ms E. Baltutytė.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
At birth the applicant was registered as a girl with a clearly female name under the rules of the Lithuanian language.
The applicant submits that from an early age he became aware of his male mental sex, thus acknowledging the conflict between his mental and genital gender.
On 18 May 1997 the applicant consulted a micro-surgeon about the possible gender reassignment procedure. The doctor proposed that the applicant consult a psychologist.
From 4 to 12 November 1997 the applicant attended the Vilnius Psychiatric Hospital for tests on his physical and psychological condition.
On 16 December 1997 a doctor at the Vilnius University Santariškės Hospital confirmed the applicant’s chromosomal sex as female, and diagnosed him as a transsexual. The doctor advised that the applicant consult a psychologist.
On 23 January 1998 the Vilnius University Raudonasis Kryžius Hospital opened the applicant’s medical file. The applicant gave his name in a masculine form under the rules of the Lithuanian language, and his medical file referred to him as being of male gender. An entry in the medical file of 28 January 1998 included a recommendation that the applicant pursue hormone treatment with a view to eventual gender reassignment surgery. Thereafter hormone treatment was officially prescribed to the applicant for a period of two months.
On 12 November 1998 the applicant, while using his original name and surname, wrote a letter to the Ministry of Health, seeking clarification of the legal and medical possibilities for gender reassignment. He stated that he was determined to undergo this procedure.
On 17 December 1998 an official of the Ministry of Health replied that a working group had been set up by the Minister of Health with a view to analysing the questions pertaining to gender reassignment, and that the applicant would be duly informed about the conclusions of that group.
The applicant submits that, thereafter, he received no further communication from the Ministry of Health.
On 13 May 1999 a doctor at the Vilnius Psychiatric Hospital confirmed that the applicant, referred to by his original name, had attended the hospital from 4 to 12 November 1997, and that he had been diagnosed as a transsexual.
The applicant submits that in 1999 his general medical practitioner refused to prescribe hormone therapy in view of the legal uncertainly as to whether or not full gender reassignment could be carried out with the new identity of a transsexual being registered pursuant to the domestic law. Thereafter the applicant continued the hormone treatment “unofficially”.
On an unspecified date in 1999, the applicant requested that his name on all official documents be changed to reflect his male identity; that request was refused.
On an unspecified date in 1999, the applicant entered Vilnius University. Upon the applicant’s request, the university administration agreed to enter the applicant into the register of students under the male name chosen by him (bearing the initials P.L.). The applicant asserts that the decision of the University was exceptional and purely humanistic, the laws applicable at the material time having clearly required his registration under his original female name, as indicated in his birth certificate and passport.
From 3 to 9 May 2000 the applicant underwent “partial gender reassignment surgery”, namely a breast removal procedure. The applicant submits that the doctors chose to carry out the surgery in view of the adoption of the new Civil Code (see the ‘Relevant domestic law and practice’ section below), and given the medical necessity to protect his life. The applicant agreed with the doctors that a further surgical step would be carried out upon the adoption of laws governing the conditions and procedure thereof.
In 2000, with the assistance of a Lithuanian Member of Parliament (“MP”), the applicant’s birth certificate and passport were changed to indicate the applicant’s identity as P.L. The name and surname chosen by the applicant for this new identity were of Slavic origin, and thus did not disclose the applicant’s gender. The applicant could not choose any Lithuanian name or surname as they are all gender-sensitive. At the same time, the applicant’s “personal code” in his new birth certificate and passport, i.e. a numerical code comprising the basic information about a person in accordance with the Lithuanian civil registration rules, remains the same and starts with number “4”, thus disclosing his gender as female (see the ‘Relevant domestic law and practice’ part below).
The applicant states that he therefore remains of female gender under domestic law. This is confirmed inter alia by the fact that, in his Vilnius University diploma received after successfully graduating in 2003, his “personal code” remains the same and denotes him as a female. As a result, he faces a vast amount of daily embarrassment and difficulties, as he is unable to apply for a job, pay social security contributions, consult medical institutions, communicate with the authorities, obtain a bank loan, cross the State border, etc.
The applicant submitted a copy of an article by the Baltic News Agency (BNS) of 17 June 2003 quoting the statement of the Chairman of Seimas as to the Gender Reassignment Bill (see the ‘Relevant domestic law and practice’ part below). It was mentioned in the article that certain MPs accused the Minister of Health of being personally interested in the adoption of the law, as he is a plastic surgeon. The article also mentioned that certain members of the Social Democratic Party urged the adoption of the law as it was required by the imminent entry into force of the provisions of the new Civil Code on 1 July 2003. The article included a reference to the opinion of experts, according to which about 50 transsexuals were presumed to live in Lithuania. It was mentioned that certain Vilnius and Kaunas surgeons were properly equipped and qualified to carry out gender reassignment surgery, the price of which would amount to about 3,000-4,000 Lithuanian litai (EUR 870-1,150), excluding the costs of the hormone therapy. The article stated that a number of persons had already applied for gender reassignment, but that the surgery could not be fully completed in the absence of adequate legal regulation. It was presumed that some of the Lithuanian transsexuals were thus obliged to go abroad for treatment.
In an article by the BNS on 18 June 2003 about the meeting between the Prime Minister and the heads of the Lithuanian Catholic Church, the Prime Minister was quoted as saying that it was “too early” for Lithuania to adopt a law on gender reassignment, and that there was “no need to rush” or “copy the principles that exist in one country or another.” The article stated that the Catholic Church had been among the most ardent opponents of such a law. At the same time, the Prime Minister admitted that the Government was obliged to prepare a Gender Reassignment Bill in view of the entry into force of the new Civil Code on 1 July 2003.
B. Relevant domestic law and practice
There were no provisions pertaining to the question of transsexuals in any Lithuanian law until the adoption of the new Civil Code on 18 July 2000. The Civil Code entered into force on 1 July 2001. Article 2.27 § 1 of this Code (which only entered into force on 1 July 2003) provides that “an unmarried adult has the right to gender reassignment (pakeisti lytį) in a medical way, if this is medically possible. Such a request by the person shall be made in writing.” The second paragraph of this provision stipulates that “the conditions and procedure for gender reassignment shall be established by law.”
On 27 December 2000 the Government adopted a decree specifying the measures for the implementation of the new Civil Code. The preparation of a Gender Reassignment Bill was mentioned in it.
Rule 109.2 of the Civil Registration Rules, approved by an order of the Minister of Justice of 29 June 2001 (in force from 12 July 2001), permits the change in the acts of civil status if there is a need to change a person’s gender, name and surname, following gender reassignment.
Pursuant to the Residents Register Act and other relevant domestic laws, every Lithuanian resident has a “personal code” (asmens kodas), which is a numerical code comprising the basic information, including his or her gender. Article 8 § 2 of the Residents Register Act provides that the first number of a personal code denotes a person’s gender. A personal code starting with number “3” denotes that the person is a male, while the code starting with “4” means that the person is a female.
Article 5 of the Passport Act 2003 provides that a passport shall be changed if a citizen changes his name, surname, gender or personal code.
The Gender Reassignment Bill was prepared by a working group of the Ministry of Health in early 2003. On 3 June 2003 the Government approved the Bill, sending it for consideration by the Seimas (Parliament). In an explanatory note to Parliament of 4 June 2003, the Minister of Health indicated inter alia: “at present no legal act regulates the conditions and procedure for gender reassignment.” The Bill was initially scheduled for a plenary session of Parliament on 12 June 2003, but it was not examined on that day. It was later scheduled for 17 June 2003, but was omitted from Parliament’s agenda. On the same date the Chairman of Parliament circulated an official memorandum on the Bill, stating inter alia:
“The Chairman of Seimas Artūras Paulauskas strongly denounces gender reassignment surgery and the further consideration of a draft law thereon in a parliamentary hearing.
[At a time] when the demographic situation in Lithuania becomes threatened, the Seimas should not exaggerate in considering such a controversial law, which can be taken by society as an insult to the far more important problems facing the health-care system.”
COMPLAINTS
1. Under Articles 2 and 3 of the Convention, the applicant complained about legal lacunas in Lithuania which critically threatened his life and health. In this respect he complained about the absence of a law regulating the conditions and procedure for gender reassignment, and the status of transsexuals, regardless of the fact that, since 1 July 2003, the new Civil Code had permitted gender reassignment and clearly required the legislature to adopt such a law. The applicant submitted that he had been officially diagnosed as being a transsexual in 1997, and had thereafter been officially prescribed hormone treatment with a view to eventual gender reassignment. Furthermore, the initial step of the applicant’s gender reassignment surgery had been carried out by doctors in 2000, following the adoption of the new Civil Code, and in the expectation that the full statutory regulation of the matter would soon follow. However, the doctors had not been able to complete the procedure given the continued absence of legal regulation. In addition, without any statutory regulation on the conditions and procedure for gender reassignment, doctors could not even “unofficially” complete the surgery at the risk of being prosecuted under Article 135 of the Criminal Code (causing grievous bodily harm). The applicant concluded that, having continued the hormone treatment since 1998 to this day in the false hope of completing the gender reassignment procedure, he found himself in a perplexed physical and mental state, which might have lethal consequences if this surgery is not completed soon.
2. Under Article 8 of the Convention, the applicant complained about the insufficiency of domestic legislation that would permit him to legalise his status as a man, and avoid the risk of the daily embarrassment of being presented to society as a woman. In view of the absence of a law on gender reassignment and the status of transsexuals, he was unable to change his official documents, such as his birth certificate and passport, which attested that he was of female gender. Given that any name or surname of Lithuanian origin is gender-sensitive, he was obliged to choose a gender-neutral surname of Slavic origin (with the initials P.L.) when he obtained his new passport and birth certificate in 2000. However, he did not want that surname, and that would not have chosen it if he had been allowed to choose a name and surname of Lithuanian origin. In any event, even after having obtained the new birth certificate and passport in 2000 under the gender-neutral name, he continued to be considered as a female under Lithuanian law, as attested by his “personal code”. As a result of these circumstances, he had great difficulty in exercising many mundane tasks without being embarrassed daily, being unable to apply for a job, pay social security contributions, consult medical institutions, communicate with the authorities, obtain a loan at a bank, cross the State border, etc. without his female gender being disclosed.
3. Under Article 10 of the Convention the applicant complained that he had not been allowed to take part in the discussions leading to the preparation of the Gender Reassignment Bill.
4. Under Article 12 of the Convention the applicant complained that he has not been allowed to marry as a man.
5. Finally, the applicant alleged that his physical and mental integrity was breached, and that, due to this, he had been discriminated against, in breach of Article 14 of the Convention.
THE LAWThe applicant complained under Articles 2, 3, 8, 12 and 14 of the Convention about the discriminatory lack of legal regulation in Lithuania which prevented him from completing gender reassignment surgery, registering his chosen identity and marrying as a male.
Article 2 provides, insofar as relevant, as follows:
“1. Everyone’s right to life shall be protected by law ...”
Article 3 reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 8 states, insofar as relevant, as follows:
“1. Everyone has the right to respect for his private and family life ...”
Article 12 provides:
“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”
Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Government submitted that the applicant had not exhausted domestic remedies in that he had not submitted a court action - by way of a civil or administrative procedure - referring to the impugned Articles of the Convention and claiming damages for the alleged inactivity of the administrative and health care-authorities in their dealing with his gender-reassignment requests.
As to the merits of the case, the Government submitted some general observations about the problems related to identifying and treating gender identity disorders. In view of those issues, the Government considered that a vast margin of appreciation should be afforded to States in deciding whether to allow gender reassignment, and whether to recognise the person’s new identity where gender reassignment surgery had not been performed or completed. The Government also emphasised Lithuania’s cultural specifics as a predominantly catholic country, the discussion on gender reassignment issues contradicting the “acknowledged cannons” of that society. The State was thus free to regulate questions relating to transsexuals in a manner responsive to these particular social conditions. The Government stressed however that, where the right to gender reassignment surgery had been provided and implemented, the new gender of post-operative transsexuals must be recognised and respected.
As regards the applicant’s complaints under Articles 2 and 3 of the Convention, the Government submitted that full gender reassignment surgery was not an indispensable prerequisite for treating gender identity disorders. In particular, the general medical practice showed that hormone therapy and partial gender reassignment surgery, such as breast removal, could in certain cases be sufficient to help a female-to-male transsexual pursue his life experience in the role of the desired gender. The applicant, for his part, had failed to show that a lack of medical treatment had caused a risk to his life and health. In any event, most of the medical procedures – except for the first two months of hormone treatment prescribed in 1998 – had been unofficially undertaken by the applicant on his own initiative, although he had been warned by doctors about the risks involved. The State could not therefore be deemed responsible for the alleged deterioration in the applicant’s health. All in all, the standards of the legal protection of transsexuals in Lithuania, or indeed the level of the actual health-care afforded to the applicant, was not of such a level as to raise issues under Articles 2 or 3 of the Convention.
As to the applicant’s complaints under Article 8 of the Convention, the Government submitted that the applicant was free to claim a change of his official identity into male according to the Passport Act and other domestic provisions. Furthermore, the applicant had been afforded the right to change his name into a gender-neutral one. There had thus been no violation of this provision. Finally, the Government concluded that the applicant could not be considered as a victim of a violation of Article 12 of the Convention in that the civil metrication rules did not prevent a transsexual from marrying in his new identity following gender reassignment surgery, and given no clear indication that the applicant would have been banned from marrying as a man if he had undergone gender reassignment surgery.
The applicant disagreed with the Government’s arguments, maintaining that the lack of legal regulation in Lithuania had resulted in a risk to his life and health, and had prevented him from pursuing his private and family life as a man.
The Court observes that the applicant essentially complains under Articles 3, 8, 12, and 14 of the Convention about the state of the domestic law, namely the lack of legislation allowing him to complete gender reassignment surgery and pursue his life as a person of male gender. The object of the applicant’s complaints is thus the alleged failure by the State to comply with its positive obligation under the above Convention provisions. There is no indication that a domestic procedure in this respect would have afforded the applicant effective access to a court in theory or in practice, or that he would have had a reasonable prospect of success to remedy the alleged violations (see, mutatis mutandis, Valasinas v. Lithuania (dec.), no. 44558/98, 14 March 2000). These complaints cannot therefore be rejected for non-exhaustion.
In the light of the parties’ submissions, the Court finds that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. It cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
By contrast, the Court considers that this complaint does not fall within the ambit of Article 2. Accordingly, this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
2.To the extent that the applicant has also alleged a violation of Article 10 (the right to freedom of expression) the Convention, it does not appear that the complaint as raised by the applicant falls within the ambit of this provision. In any event, the applicant has failed to show that the facts alleged in this case disclose any appearance of a violation of Articles 10. Accordingly, this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares admissible, without prejudging the merits, the applicant’s complaints under Articles 3, 8, 12, and 14 of the Convention;
Declares inadmissible the remainder of the application.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy