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LGBT Lithuania Shadow Report ICCPR

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LGBT Lithuania Shadow Report ICCPR Human Rights Violations of Lesbian, Gay, Bisexual, and Transgender (LGBT) People in Lithuania: A Shadow Report Submitted for consideration at the 105th Session of the Human Rights Committee July 2012, Geneva Submitted to the United Nations Human Rights Committee by: • Lithuanian Gay League • The Heartland Alliance for Human Needs & Human Rights 1 I. Introduction This shadow report is the result of a collaborative effort, developed and submitted to the Human Rights Committee by the Lithuanian Gay League (LGL) and Heartland Alliance for Human Needs & Human Rights. 1 The Republic of Lithuania acceded to the International Covenant on Civil and Political Rights (ICCPR) on November 20, 1991. The Human Rights Committee will consider Lithuania’s November 2010 third periodic national report during its 105 th session in Geneva taking place from July 9th to 27th 2012. In its third periodic national report to the Human Rights Committee, the government of Lithuania asserts that the “Laws of the Republic of Lithuania guarantee the rights under the International Covenant on Civil and Political Rights to all individuals within Lithuania’s territory and its jurisdiction without discrimination of any kind.” 2 The government further stated that an “adequate legal framework” exists in Lithuania for giving effect to the ICCPR and that “the passage of discriminatory laws or other legal acts” is prohibited in Lithuania. 3 However, in spite of this commitment to uphold the spirit of the ICCPR, the Lithuanian government has failed to adequately address and report upon human rights violations committed on the grounds of sexual orientation and gender identity by failing to even mention them in its third periodic report and by failing to adequately address them in its reply to the list of issues to be taken up in connection with consideration of Lithuania’s third periodic report. This shortcoming on the part of the government seriously undermines Lithuania’s commitment to the ICCPR. Sexual minorities in Lithuania continue to be systematically discriminated against, are often denied freedom of assembly and expression, and are widely subjected to hate speech within Lithuanian media. It is our hope that the findings contained in this report will be both useful to the Human Rights Committee and can be used as a tool for protecting and promoting sexual orientation and gender identity rights under the ICCPR. 1This report was drafted by Jacqueline Bevilaqua (J.D.), with contributions from Vladimir Simonko, Chair of the Lithuanian Gay League and Anna Shepherd, Intern with the Lithuanian Gay League, under the supervision of Stefano Fabeni (J.D., LL.M.), Director of the Global Initiative for Sexuality and Human Rights of Heartland Alliance. 2 Consideration of reports submitted by States parties under article 40 of the Covenant: Third periodic national report of States parties, Lithuania, CCPR/C/LTU/3, November 29, 2010. 3 Id . 2 II. Executive Summary The Lithuanian Constitution holds that “The rights and freedoms of individuals shall be inborn”.4 It also guarantees personal freedom 5and human dignity 6, prohibits the degrading treatment of persons 7, and protects the private lives of individuals 8 as well as freedom of expression 9 and conscience 10 . Finally, the Constitution states that “All people shall be equal before the law, the court, and other State institutions and officers 11 . In addition, in December of 1998, the Seimas passed the Law on Equal Opportunities for Women and Men and in the next year appointed the Ombudsman for Equal Opportunities for Women and Men 12 (Ombudsman). The scope of action of the Ombudsman is inclusive of the investigation of complaints of discrimination and harassment based upon “gender, race, national background, language, origin, social status, religion, convictions or opinions, age, sexual orientation, disability, ethnic origin, religion 13 .” This equal opportunity legislation does not include protections from discrimination based on gender identity, and although the European Union Court of Justice held that sex must be interpreted to include gender identity 14 , the failure to explicitly include this status in legislation could lead to violations. Additionally, in the recent past, the Ombudsman was often inadequate in its response to allegations of discrimination based on sexual orientation. There are pervasive examples of a culture of anti-LGBT discrimination in Lithuania, and opinion polls show that Lithuania is one of the most homophobic countries in Europe 15 . A draft bill has been introduced in the Seimas aimed at amending the Administrative Code to impose fines for the “promotion of homosexual relations” and at this time is still currently under consideration 16 . Additionally, LGBT persons have been subjected to hate speech within Lithuanian media, largely being portrayed in inflammatory, conspiratorial, and stereotypical ways and a number of politicians have made public anti-homosexual statements. Also, the Government of Lithuania effectively denies transgender individuals from undergoing complete gender reassignment in spite of a finding by the European Court of Human Rights in the case of L. v. Lithuania that Lithuania’s Civil Code violated article 8 of the European Convention on Human Rights in its precarious treatment of gender reassignment 17 . Finally, the LGBT community in Lithuania 4 Constitution of the Republic of Lithuania, art. 18. 5 Id ., art. 20. 6 Id ., art. 21. 7 Id . 8 Id ., art. 22. 9 Constitution of the Republic of Lithuania, art. 25. 10 Id ., art. 26. 11 Id ., art. 29. 12 Consideration of reports submitted by States parties under article 40 of the Covenant: Third periodic national report of States parties, Lithuania, CCPR/C/LTU/3, ¶ 17, November 29, 2010. 13 Id . 14 P v. S and Cornwall County Council , C-13/94, April 30, 1996. 15 Tereškinas, Art ūras. “Not Private Enough? Homophobic and Injurious Speech in the Lithuanian Media” available at: www.atviri.lt/uploads/files/dir27/dir1/16_0.php. 16 List of issues to be taken up in connection with the consideration of the third periodic report of Lithuania, CCPR/C/LTU/3, ¶ 6, December 5, 2011. 17 L. v. Lithuania , Application no. 27527/93, September 11, 2007. 3 regularly must struggle for visibility and for the freedom to assemble and to express themselves in public spaces, with government officials obstructing Pride Marches and other public showings of LGBT solidarity. In acceding to the ICCPR, along with numerous other international human rights instruments and the European Convention on Human Rights, the government of Lithuania has committed itself to protecting the rights of all Lithuanians regardless of sexual orientation or gender identity and to rectifying the wrongful discrimination that LGBT persons face there. There have been numerous instances of discrimination and rights violations aimed at the LGBT community in Lithuania in the past few years, including on the part of state authorities, some of which are documented within this report. It is our hope that this report will assist the Human Rights Committee in evaluating Lithuania’s compliance with the ICCPR and will lead to progress towards equality for LGBT persons within Lithuania. 4 III. Substantive Violations of the Covenant Articles 2(1) and 26 (Non-discrimination) Relevant Law and Jurisprudence Articles 2(1) and 26 of the ICCPR form the non-discrimination standard to which all state parties to the ICCPR will be held. Article 2(1) states: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status 18 . Article 26 of the ICCPR goes on to recognize that: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status 19 . In the case of Toonen v. Australia , which held that the criminalization of consensual same-sex sexual activity was a violation of the ICCPR, the Human Rights Committee (HRC) determined that the reference to sex in articles 2(1) and 26 must be interpreted as including sexual orientation 20 . Thus, the rights protected by the ICCPR are guaranteed to persons of all sexual orientations, without discrimination. The Human Rights Committee extended its holding in Toonen beyond criminal law to administrative law in its decision in Young v. Australia . In that case, the HRC determined that Australia violated the equal protection clause of Article 26 of the ICCPR in “denying the author a pension on the basis of his sex or sexual orientation”21 . In making this decision, the HRC determined that a distinction based upon sexual orientation amounted to a denial of the right to equality before the law. Additionally, in Toonen , the HRC rejected Tasmania’s argument that the criminalization of homosexual practices was a reasonable, proportionate measure taken to preserve morality and to 18 International Covenant on Civil and Political Rights, G.A. Res. 2200A, 999 U.N.T.S. 171, art. 2 (Dec. 16, 1996) [hereinafter ICCPR]. 19 Id . at art. 26. 20 Toonen v. Australia , Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (1994). 21 Edward Young v. Australia , Communication No. 941/2000: Australia. 18/09/2003. U.N. Doc. CCPR/C/78/D/941/2000 (2003) at 10.4. 5 prevent the spread of HIV/AIDS. The HRC held, to the contrary, that the sodomy law was “arbitrary” and failed to be “proportionate to the end sought”22 . The HRC held similarly in X v.
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