2019 was a significant year for the LGBT community because of the important achievements made when defending its rights before national and supranational courts. In this interview, Vytautas Mizaras, a professor of the Faculty of Law in Vilnius University (VU), reviews the major achievements of LGBT human rights over the past year and looks at possible legal measures to enforce the rights of the LGBT community in the future.
– A year ago, you and your colleagues were awarded at the National Equality and Diversity Awards for working with the Constitutional Court on allowing a same-sex partner to live in Lithuania. What is the meaning of the Rainbow Award to you?
– This award was primarily dedicated for the applicants of the case themselves: two people who had decided to defend their rights, their human dignity. We lawyers have only helped to achieve this goal, in accordance with the Constitution and other laws of the Republic of Lithuania. The outcome of this case is very important. For the first time in the history of Lithuanian law, people and their right to live as family members in Lithuania, or in any other country they choose, has been defended, regardless of their sexual orientation. The National Equality and Diversity Award symbolizes societal diversity, the inclusion of LGBT people in society. This award is important to all people who pursue a goal, laid out in the Constitution: an open and harmonious society, regardless of certain personal qualities. The fact that attention has been drawn to this initiative is important to me both as a lawyer and as a human being.
– The Constitutional Court’s statement that the Constitution protects all citizens of Lithuania, regardless of their sexual orientation and gender identity, had no greater resonance in society. What do you think should popularize this fact?
– I believe that attention has been drawn to this case and its decision. The President of the Constitutional Court even had to explain the ruling of this case to politicians and participate in shows with politicians because there were some considerably hostile attitudes towards the ruling of the Constitutional Court. During the investigation of this case, the Constitutional Court held oral proceedings. This is a rather rare occurrence in the practice of the Constitutional Court. It seems to me that this was done to show the significance and importance of the case to the public. An important issue was being addressed and the views of the majority in society are still not tolerant enough. There have been quite a few comments in the press following this court decision.
The problem with publicizing this ruling of the Court arose from the fact that the ruling was commented on by individual representatives of civil society, non-governmental organizations. However, politicians and authorities deliberately missed the opportunity to comment on this Court ruling. The prevailing political ideology and conjuncture view this ruling of the Court negatively. Certain groups in society are thought to fall out of the imaginary standard. So the authorities don’t pay attention to the problems associated with these groups and their rights.
The Constitutional Court was expected to influence the legislature. Unfortunately, so far we haven’t seen any impact of the ruling. The Constitutional Court addressed a specific issue in the field of migration, but the Court’s decision has a broader meaning as well, since it also states fundamental human rights issues. For the first time, the Constitutional Court has clearly stated that Article 29 of the Constitution guarantees equality, regardless of sexual orientation and gender identity. The court also interpreted Article 38 of the Constitution, which deals with the concept of family. It was clearly stated that not only international treaties, but also the Constitution, as the supreme act in Lithuania, protects all families, including same-sex families.
This is where the efforts of lawmakers to regulate and secure legal certainty for people living as a family are much needed, just as legal certainty is currently guaranteed for married opposite-sex couples. Both different and same-sex families living in a partnership must have legal certainty so that they are treated as family members in all legal relationships, not just in the area of migration.
– In your opinion, what does it show that some politicians have publicly questioned the Constitutional Court’s decision?
– There have been some who have questioned the Constitutional Court’s decision, but I think there were far more politicians who disagreed but did not express it publicly. This also applies to the attitudes prevailing in our society. It can be argued that society’s attitudes towards LGBT people do not change quickly, but we are obviously behind in changing our views. This is clearly illustrated by the lost Lithuanian cases in the European Court of Human Rights. I have no doubt that we will see many more similar cases if we continue to be late in changing our attitudes and fail to recognize the diversity of society. Most of the cases related to not recognizing societal diversity have been lost by Lithuania in the European Court of Human Rights. These cases deal not only with sexual orientation, but also religious beliefs, non-recognition of freedom of religion and failure to ensure the rights of people of other nationalities. Therefore, these cases are related to the fact that Lithuania does not recognize the diversity of society on various grounds.
These are the lessons that should be learned by reading the texts of the decisions of the European Court of Human Rights. One should be red with embarrassment when reading them because they highlight the divide between the positions of the Lithuanian authorities and the view of the European Court of Human Rights. Here in the Beizaras and Levickas v. Lithuania case the Lithuanian authorities say there is no need to investigate instances of hate speech, because the two guys who published a photo of them kissing were guilty themselves for provoking comments that called to “kill them”. The European Court of Human Rights says the other way around – the guys didn’t want to hide their feelings and that’s perfectly normal: they have nothing to hide and shouldn’t be afraid of receiving hate because of their sexual orientation.
This case therefore reveals a fundamentally different approach between national authorities and the European Court of Human Rights regarding human rights, human dignity and protection from hate. I hope this Court ruling will encourage Lithuania to provide effective legal remedies against hate speech and hate crime. The European Court of Human Rights also drew attention to the different attitudes of the Lithuanian authorities towards hate speech on different grounds. The court emphasized that the Lithuanian authorities recognize hate speech against Jews or persons of other nationalities and do not recognize cases of hate speech based on sexual orientation. So we could learn a lot from just reading the rulings of the European Court of Human Rights.
– We have recently received the European Court of Human Rights’ judgement regarding the Beizaras and Levickas v. Lithuania case. How could this judgment be implemented in practice in Lithuania? What is the impact of this case on the LGBT community and society?
– I always want to believe that we are improving. Indeed, there is progress. We must recognize that the situation of LGBT rights in Lithuania is progressing. If Lithuania doesn’t follow the footsteps of Poland or Hungary, the situation of LGBT rights should improve. We won’t achieve anything with coercion. The legislature and law enforcement agencies are autonomous. I do believe that law enforcement institutions are run by professionals. This is what makes them different from politicians. This is evident in the work of the courts. A great example of this is cases of realizing one’s gender identity. If not for professional courts, the situation would be catastrophic, as transgender people would not receive any help. The Gender Identity Bill has been drafted, but the Government keeps not submitting it to the Seimas for consideration. In the context of hate crime investigations, law enforcement institutions understand their mistakes and learn from them as professionals. They participate in training organized by various non-governmental organizations. So there is a sense of benevolence on the part of law enforcement agencies to learn. This lets us hope that we will make progress faster. The media also contributes to the visibility of human rights issues and the promotion of diversity and non-discrimination.
Well, and lawmakers are not contributing to human rights progress yet. In the context of Beizaras and Levickas v. Lithuania, legal safeguards against hate speech and hate crime already exist. And when it comes to the right to family life for members of the LGBT community, it requires the intervention of politicians. It’s difficult to say whether the newly elected Seimas will differ from the present one. I don’t have much optimism because since 2000 the attitude of all cadencies of Seimas to LGBT issues has become worse. However, I hope that individual advocacy initiatives will be able to bring these issues to the attention of legislators.
– You mentioned possible strategically important cases to the LGBT community. What legal action could be taken in the future to ensure the rights of LGBT people?
– I’m happy that certain people are determined to defend their rights in the context of a residence permit or hate speech. When it comes to the right to family life, I don’t understand why there is no determination or time to defend one’s rights. After all, there are quite a few same-sex families in Lithuania. I have no doubt that in the future somebody will decide to defend their right to family life. However, first and foremost, the possibility of an individual complaint to the Constitutional Court through domestic remedies should be seized. Such a case would be significant for the entire LGBT community.
The Beizaras and Levickas v. Lithuania case also has implications for the entire LGBT community not only in Lithuania but in all Council of Europe states. Hatred is common not only in Lithuanian society. So we must continue to defend the right to protection against hate speech and hate crime and the right to family life. I don’t believe that without this fight politicians will make the right decisions. It is also worth defending the rights of the LGBT community under Article 14 of the Convention because of the discriminatory provisions of the Republic of Lithuania’s Law on the Protection of Minors against the Detrimental Effects of Public Information. Although these provisions are formulated in a clever and diplomatic way, their prehistory clearly shows that they are directed against only the LGBT community. These are clearly discriminatory provisions. So it is important for the LGBT community to defend their rights both in Lithuania and in supranational courts.
The article was prepared in the framework of the project “Change in Business, Public Sector and Society – New Standards for Reduction of Discrimination”. The project is implemented by the Office of the Equal Opportunities Ombudsperson, partners are the public institution Human Rights Monitoring Institute and LGL Association.