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Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity

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Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity Lithuania January 2014 Update Authors of the 2014 Update: Natalija Bitiukova Franet contractor: Lithuanian Social Research Centre Authors of the 2010 Update and 2008 report: Edita Ziobiene DISCLAIMER: This document was commissioned under contract as background material for comparative analysis by the European Union Agency for Fundamental Rights (FRA) for the project ‘Protection against discrimination on grounds of sexual orientation, gender identity and sex characteristics in the EU, Comparative legal analysis, Update 2015’. The information and views contained in the document do not necessarily reflect the views or the official position of the FRA. The document is made publicly available for transparency and information purposes only and does not constitute legal advice or legal opinion. Contents Executive summary .............................................................................................................1 A. Implementation of Employment Directive 2000/78/EC ..................................................10 A.1. The Law on Equal Treatment ..................................................................................... 12 A.2. Legal standing of associations .................................................................................. 13 A.3. The shift of the burden of proof ................................................................................ 15 A.4. The complaint procedures available to victims of discrimination on the ground of sexual orientation ..................................................................................................................... 16 A.5. The establishment of bodies for promotion of equal treatment ....................................... 18 A.6. Sanctions and remedies ........................................................................................... 20 A.7. Exceptions to equal treatment ................................................................................... 25 B. Freedom of movement ................................................................................................27 C. Asylum and subsidiary protection .................................................................................30 D. Family reunification ...................................................................................................33 E. Freedom of assembly ..................................................................................................34 E.1. Freedom of assembly and the LGBT community—first attempt ............................................. 35 E.2. Freedom of assembly and the LGBT community—second attempt .................................... 36 E.3. Freedom of assembly and the LGBT community—third attempt ....................................... 36 E.4. Freedom of assembly and the LGBT community—Baltic Pride 2010 ................................. 38 E.5. Freedom of assembly and the LGBT community—Baltic Pride 2013 ................................. 40 E.6. Problematic aspects of regulation of the right to assembly ................................................ 42 E.7. Legislative initiatives restricting freedom of assembly on moral grounds ............................ 44 F. Criminal law .............................................................................................................46 F.1. Hate speech................................................................................................................... 46 F.2. Hate crimes and homophobic motivation ............................................................................ 51 F.3. Legislative initiatives limiting the application of hate speech laws to homophobic speech ........... 53 G. Transgender issues .....................................................................................................54 H. Miscellaneous ............................................................................................................60 H.1. Freedom of expression ..................................................................................................... 61 H.2. The Law on the Protection of Minors .................................................................................. 61 H.3. Legislative initiatives, attempting to criminalise “propagation” of homosexuality .......................... 64 H.4. Legislative initiatives constitutionally defining “a family” ..................................................... 65 H.5. Family life and same-sex partnerships ............................................................................... 67 I. Good practices ...........................................................................................................69 J. Intersex ....................................................................................................................71 Annex 1 – Case law ............................................................................................................74 Annex 2 – Statistics ..........................................................................................................106 Executive summary Implementation of Employment Directive 2000/78/EC The June, 2008 amendments to the Law on Equal Treatment formally eliminated large part of implementation gaps, expanded the scope of the law to include additional equality grounds;1 however, the transposition is still insufficient. In 2011, the Code of Civil Procedure [Civilinio proceso Kodeksas] of the Republic of Lithuania was amended, broadening the scope of organizations that could potentially engage in litigation on behalf of the victims of discrimination in the civil courts.2 However, there have not been any case brought on behalf of a victim of discrimination (or on any of the non-discrimination grounds) either before the Ombudsperson, or before the courts brought by an association/trade union/non-governmental organization, therefore it is not absolutely clear how the courts would interpret the standing provisions in the national laws. The provisions regarding the burden of proof were transposed into the Law on Equal Treatment in 2008.3 Recent case law showed that national courts do shift the burden of proof, after a claimant establishes a prima facie discrimination cases.4 What exactly a “prima facie” case entails is however unclear, and remains to be decided on case by case basis. Nevertheless, even with the burden of proof shifted to the responded, the only two discrimination on the ground of sexual orientation cases have not succeeded.5 An institution for promotion of equality of persons, not only regardless of racial or ethnic origin, but also regardless of other characteristics, including sexual orientation, was established in 2005 by the Law on Equal Treatment, which gave competence to the Ombudsperson to investigate complaints by natural and legal persons on grounds of discrimination. Decisions of the Equal Opportunities Ombudsperson to apply administrative sanctions are binding, but can be overruled by a court. Applying to the Equal Opportunities Ombudsperson does not prevent a complainant from lodging a claim with a court on the same matter. In practice the Ombudsperson often acts as a mediator – according to the Ombudsperson, peaceful resolution of discrimination is one of its main objectives. The number of complaints alleging discrimination on the ground of sexual orientation brought to the Ombudsperson has been decreasing since 2007, and in 2013 the Ombudsperson has received no complaints on this ground at all.6 Such trend may be attributed to the fact that the 1 Lithuania, The law on the amendment of the law on equal treatment (Lygių galimybių įstatymo pakeitimo įstatymas), No X-1602, 17 June 2008, available at: www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=323620&p_query=&p_tr2= All hyperlinks were accessed on 28 April 2014. 2 Lithuania, Law on equal treatment (Lygių galimybių įstatymas), No. 114-5115, 18 November 2003, available at: www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=454179. 3 Lithuania, The law on the amendment of the law on equal treatment (Lygių galimybių įstatymo pakeitimo įstatymas), No X-1602, 17 June 2008, available at: www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=323620&p_query=&p_tr2 4 Lithuania, Vilnius District Court (Vilniaus apygardos teismas), No. 2A-2140-464/2011, 8 March 2013. 5 Lithuania, Vilnius District Court (Vilniaus apygardos teismas), No. 2A-2140-464/2011, 8 March 2013. 6 Lithuania, Equal Opportunities Ombudsperson (Lygių galimybių kontrolieriaus tarnyba), Activity report of the Office of the Equal Opportunities Ombudsperson for 2005 (Lygių galimybių kontrolieriaus tarnybos veiklos 2005 m. ataskaita); Activity report of the Office of the Equal Opportunities Ombudsperson for 2006 (Lygių galimybių kontrolieriaus tarnybos veiklos 2006 m. ataskaita); Activity report of the Office of the Equal Opportunities Ombudsperson for 2007 (Lygių galimybių kontrolieriaus tarnybos veiklos 2007 m. ataskaita); Activity report of the Office of the Equal Opportunities Ombudsperson for 2008 (Lygių galimybių kontrolieriaus tarnybos veiklos 2008 m. ataskaita); Activity report of the Office of the Equal Opportunities Ombudsperson for 2009 (Lygių galimybių kontrolieriaus tarnybos 1 applicants do not find the sanctions imposed by the Ombudsperson proportionate to the gravity of their rights violation; effective and dissuasive. In addition, effectiveness of the follow-through on the recommendations
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