CEDH · CASELAW;CLIN;ENG — 11 septembre 2007

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Lithuania - 27527/03 Judgment 11.9.2007 [Section II] Article 8 Article 8-1 Respect for family life Respect for private life Failure to introduce implementing legislation to enable a transsexual to undergo gender-reassignment surgery and change his gender identification in official documents: violation   Article 41 Just satisfaction Just satisfaction in respect of State’s failure to enact implementing legislation: State to introduce relevant legislation within set time frame or, in default, pay a specified amount in respect of pecuniary damage   Facts : The applicant was registered as a girl at birth in 1978 but, from an early age, regarded himself as a male and in 1997 sought medical advice about gender reassignment. Although he was diagnosed as a transsexual his doctor initially refused to prescribe hormone therapy in view of uncertainty as to whether or not full gender reassignment could be legally carried out. He was therefore forced to follow the hormone treatment unofficially. Following the adoption of the new Civil Code in 2000, which for the first time introduced a right to gender-reassignment surgery in Lithuanian law, the applicant underwent partial reassignment surgery. However, he agreed with the doctors to defer any further surgical steps pending the introduction of implementing legislation on the conditions and procedure for gender reassignment. The implementing legislation has not yet been enacted following strong opposition to the bill in the Parliament. The applicant remained a female under domestic law and although he was eventually permitted to change his name to one that was not gender sensitive, his personal code on his new birth certificate and passport and on his university diploma continued to identify his gender as female. He thus faced considerable embarrassment and difficulties in daily life and found himself ostracised to the point where he had become suicidal. Law : Article 3 – While the applicant had suffered understandable distress and frustration the circumstances were not of such an intense degree, involving exceptional, life-threatening conditions, as to fall within the scope of this provision. Conclusion : no violation (six votes to one). Article 8 – Lithuanian law recognised transsexuals’ right to change not only their gender but also their civil status. However, there was a gap in the legislation in that there was no law regulating full gender-reassignment surgery. Until that law was adopted there did not appear to be suitable medical facilities reasonably accessible or available in Lithuania. The applicant was consequently in the intermediate position of a pre-operative transsexual, having undergone partial surgery, with certain important civil-status documents having been changed. Until he underwent the full surgery, his personal code would not be amended and he therefore remained a woman in significant aspects of his private life, such as employment and overseas travel. The legislative gap had left the applicant in a situation of distressing uncertainty with regard to his private life and the recognition of his true identity. Budgetary restraints in the public-health service might have justified some initial delays in implementing the rights of transsexuals under the Civil Code but not a delay of over four years. Given the limited number of people involved, the budgetary burden would not have been unduly heavy. The State had therefore failed to strike a fair balance between the public interest and the applicant’s rights. Conclusion : violation (six votes to one). Article 12 – The applicant’s complaint that that his inability to complete his gender-reassignment had prevented him from marrying and founding a family was premature, in that, should he complete full gender-reassignment surgery, his status as a man would be recognised together with the right to marry a woman. Conclusion : no separate examination necessary (six votes to one). Article 41 – The State could satisfy the applicant’s claim for pecuniary damage by the adoption of the requisite subsidiary legislation within three months of the judgment becoming final. Failing that, it was to pay the applicant EUR 40,000 towards the cost of having the final stages of the necessary surgery performed abroad. The applicant was also awarded EUR 5,000 for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes