On September 16, 2025, Lithuania’s Constitutional Court issued a decision that represents a significant setback for transgender rights in Lithuania. While we understand the Court’s stated jurisdictional concerns, we believe this decision perpetuates a grave injustice and fails to fulfill the Court’s constitutional duty to protect fundamental human rights.

The Context: A System Designed to Fail

To understand why this decision is so troubling, we must first understand the legal labyrinth that transgender people in Lithuania face.

The Legal Framework:

• The Civil Code (Article 2.27) grants unmarried adults the right to medically change their gender
• The Civil Code (Article 2.18) mandates state registration of gender change as a civil status act
• The Civil Code (Articles 2.19 and 2.27) requires Parliament to pass implementing legislation
• Yet no such legislation has been passed in 18 years

This yields a cruel paradox: rights exist formally but vanish in practice.

The Human Cost:

The case that prompted this referral involves a transgender woman who:

• Has undergone hormone therapy
• Lives authentically as a woman in all aspects of life
• Has obtained professional psychiatric confirmation of her gender identity
• Cannot obtain identity documents reflecting her lived reality
• Faces discrimination, employment barriers, and humiliation

Her situation is not unique. It reflects the experience of hundreds of transgender people in Lithuania who exist in what the courts aptly termed “agonizing uncertainty about their private life and recognition of their true identity.”

International Legal Obligations

Lithuania’s failure to provide legal gender recognition is not merely a domestic policy choice: it is a violation of international law that has been documented repeatedly:

The European Court of Human Rights (L v. Lithuania, 2007)

Eighteen years ago, the ECHR found that Lithuania violated Article 8 of the Convention by failing to provide legal gender recognition. The Court stated clearly: “a legal gap exists; there is no law regulating gender reassignment operations… [transgender persons] found themselves in agonizing uncertainty about their private life and recognition of their true identity.”

The ECHR emphasized that while Lithuania’s laws proclaimed the right to gender change, the absence of implementing procedures rendered those rights illusory and a violation of human rights.

Subsequent ECHR Jurisprudence

More recent cases have established that:

• Requiring surgical intervention or sterilization before legal recognition violates Article 8 (A.P., Garçon and Nicot v. France, 2017)
• Legal gender recognition must be accessible based on self-determination
• States have positive obligations to provide quick, transparent procedures

The Court of Justice of the European Union (Shipov Case, 2025)

Just weeks before Lithuania’s Constitutional Court ruling, Advocate General Richard de la Tour delivered a landmark opinion in Case C-43/24. The AG concluded that Article 21 TFEU and Articles 7 and 45 of the EU Charter preclude national legislation that prevents citizens from obtaining identity documents reflecting their lived gender identity.

The reasoning is compelling: If identity documents are required for exercising freedom of movement within the EU, those documents must reflect the person’s actual identity. Otherwise, EU citizenship rights become hollow promises.

Council of Europe Continued Criticism

In March 2024, the Committee of Ministers adopted an interim resolution specifically calling on Lithuania to provide a timeline for legislative action. The Committee noted that “despite repeated calls from the committee, no progress has been achieved in this area so far.”

The Constitutional Court’s Decision: A Missed Opportunity

Against this backdrop, the Constitutional Court received a thoughtfully crafted referral from the Vilnius Regional District Court. The referring judge identified a fundamental constitutional problem: how can Lithuania claim to be a state governed by the rule of law when it grants rights but provides no mechanism to exercise them?

The Court’s Reasoning

The Constitutional Court declined to examine the merits, stating that:

1. It can only review laws that exist, not legislative inaction or “omission”
2. The real issue is Parliament’s failure to pass implementing legislation
3. This type of non-action falls outside the Court’s jurisdiction
4. Lower courts should “fill the legal gap ad hoc” by applying constitutional principles directly in individual cases

Why This Reasoning Is Problematic

While we respect the principle of separation of powers, the Court’s reasoning creates insurmountable problems:

It Creates a Constitutional Dead Zone: Under this logic, Parliament can effectively nullify constitutional rights simply by refusing to pass implementing legislation. Rights exist but cannot be enforced because procedures don’t exist—and the Constitutional Court won’t intervene because that would require examining legislative inaction rather than legislative action.

It Ignores 18 Years of Deliberate Inaction: This is not a recent oversight or temporary gap. For nearly two decades, multiple governments and parliaments have been aware of the problem, been called upon by international courts to act, and have chosen not to. At some point, sustained inaction becomes a policy choice that should be subject to constitutional review.

It Passes an Impossible Burden to Lower Courts: The Court tells lower courts to apply the Constitution directly—but provides no guidance on what that means, what procedures to follow, or what standards to apply. This ensures inconsistent, uncertain outcomes and places individual judges in an impossible position.

It Contradicts the Court’s Own Jurisprudence: The Constitutional Court has previously recognized that:

• Discrimination based on gender identity violates human dignity (2019 decision)
• The rule of law requires clear, accessible legal procedures
• The state has obligations to protect fundamental rights
• Legislative gaps must be filled to ensure constitutional compliance

How can these principles be squared with refusing to even examine an 18-year legislative vacuum?

European Context and Comparative Analysis

Lithuania’s Constitutional Court decision must be viewed within the broader European landscape of transgender rights, where significant disparities exist between nations. According to the ACTIVEAID project’s comprehensive State of the Art Report, which conducted extensive policy analysis and stakeholder interviews across five EU countries between 2024-2025, Lithuania’s 18-year legislative vacuum stands in stark contrast to neighboring progress: Spain’s landmark Trans Law (2023) enables self-identification without medical prerequisites, Ireland provides robust legal protections explicitly covering gender identity and expression, and Greece has recently legalized same-sex marriage while banning conversion therapy.

The ACTIVEAID research involving interviews with over 225 stakeholders including trans and intersex individuals, healthcare professionals, and employers, reveal a common pattern: even in countries with progressive legal frameworks, implementation gaps persist due to resource constraints, regional disparities, and insufficient public awareness. The challenges faced by transgender individuals in Lithuania, including limited healthcare access, workplace discrimination, and the absence of legal gender recognition—mirror systemic issues documented throughout Europe, though Lithuania’s lack of explicit legal protections places it among the region’s most vulnerable populations. This comparative analysis, combining desk-based policy research with qualitative interviews and focus groups, underscores that while legal reform is essential, sustained institutional capacity-building, professional training, and civil society support remain critical for transforming formal rights into lived equality.

Conclusion: The Moral Imperative Remains

We understand that constitutional courts face difficult questions about their proper role and the limits of judicial power. We respect that judges must navigate complex questions of jurisdiction and separation of powers.

But we also believe that when fundamental human rights hang in the balance—when real people face daily discrimination, when international obligations remain unfulfilled for 18 years, when a clear constitutional violation persists and the highest court has the discretion to act.

The Constitutional Court’s decision to decline jurisdiction is technically defensible but morally disappointing. It prioritizes procedural concerns over human dignity, institutional boundaries over justice, legal formalism over lived reality.

While we understand the Constitutional Court’s stated jurisdictional concerns and respect the complexity of questions regarding separation of powers, this decision sends a deeply troubling message to Lithuania’s transgender community: that procedural considerations outweigh fundamental human dignity, that eighteen years of documented suffering does not warrant constitutional intervention, and that the recognition they desperately need can continue to wait indefinitely.

This conclusion is particularly painful given the Court’s own acknowledgment that a legal gap exists, that it violates Lithuania’s international obligations, and that it causes real harm to real people—yet the Court has chosen not to address it. We respectfully but firmly reject the premise that such prolonged denial of basic human rights falls outside the scope of constitutional protection.

The National LGBT Rights Organization LGL will continue its unwavering commitment to achieving full legal recognition for transgender people in Lithuania through every available avenue. After eighteen years of delay, we recognize that justice deferred is justice denied, yet our resolve to secure the dignity, security, and full legal recognition that every transgender person deserves has only strengthened, and we will persist in this essential work until these fundamental rights are finally realized.