Equal Opportunities Ombudsman’s Office: “Discrimination based on gender identity falls under discrimination based on gender”

On the 25th of May, 2015 the national LGBT* rights organization LGL received a notice from the Equal Opportunities Ombudsman’s Office of the Republic of Lithuania stating that potential complaints about discrimination on the basis of gender identity received by the Office would be investigated under the Law on Equal Opportunities for Women and Men of the Republic of Lithuania and/or the Law on Equal Opportunities of the Republic of Lithuania. According, any obstacle for a transgender person to fulfill the achievement of rights, freedom and equality of opportunity or any less favorable treatment to such a person on the grounds of gender identity and gender expression might and should be regarded as discrimination based on gender.

On the 23d of April, 2015 LGL appealed to the Equal Opportunities Ombudsman’s Office in order to inquire about the implementation of the principle of non-discrimination for transgender persons. In this letter, LGL stresses that despite the study about the extreme vulnerability of transgender persons as a social group carried out by the EU Agency for Fundamental Rights (FRA) in 2013, any form of legal protection against discrimination and hate crimes against transgender people on the basis of gender identity is not enshrined in the legislation of the Republic of Lithuania.

Despite the judgment L. v. Lithuania by the European Court of Human Rights (ECtHR) in 2007, there has been so far no effective implementation of the right to a fast, transparent and accessible gender reassignment procedure for transgender individuals in Lithuania. In October 2014, the Committee of Ministers of the Council of Europe invoked the comments made by LGL and other nongovernmental organizations to urge the Lithuanian government to rapidly undertake reforms that would allow Lithuanians to change the gender assigned to birth on their personal identification documents.

“The directives of the European Parliament and the Council state that any possible discrimination against a person on the grounds of gender identity or gender expression must be perceived as an unequal treatment of persons on the grounds of gender. Following these directives, any complaint about discrimination on the basis of gender identity are subject to unequal treatment based on gender” reports an official statement issued by the Equal Opportunities Ombudsman’s Office.

“A transgender person perceives herself or himself as a woman or as a man, and consequently transgender people identify themselves with the opposite sex to that assigned to birth, thus presenting themselves to the public with physical characteristics and clothing belonging to the sex they attribute to themselves. Consequently, a transgender person should be perceived and recognized as a person of the sex that he or she attributes to himself or herself. Therefore, any hindrance for transgender people to pursue their individual rights, freedoms and opportunities or any form of less favorable treatment to such people about their gender identity could and should be regarded as discrimination based on gender,” the Acting Equal Opportunities Ombudsman Edita Žiobienė explains.

Mrs. Žiobienė also stresses that the uncertain legal status of transgender people in Lithuania and the lack of conditions for changing identification documents, raises problems linked to the unequal treatment of individuals in society in order to have their rights and opportunities defended. Therefore, according to the Acting Equal Opportunities Ombudsman, gender identity and legal regulatory should be conducted systematically and holistically: first, by determining the legal recognition of gender reassignment procedures and the legal protection for transgender persons from discrimination and secondly, by implementing an effective issuance procedure of identity documents after a gender reassignment procedure.

The national LGBT* rights organization LGL welcomes the Acting Equal Opportunities Ombudsman’s statement about discrimination on the basis of gender identity. LGL hopes that the Acting Equal Opportunities Ombudsman’s clarification will not only enhance the protection of transgender people from discrimination, but also encourage these people to actively defend their interests in appealing to the Equal Opportunities Ombudsman’s Office regarding the cases of discrimination on the grounds of gender identity and gender expression.

Further guidance on the harmonization of the Lithuanian regulatory on transgender people’s human rights to more international standards, is available in LGL’s publication “Transgender people’s human rights standards: gender reassignment and legal recognition: a feasibility study”.