National litigation strategy

Strategic Litigation Program on Improving the Legal Protection of LGBT Rights on National Level (2013 – 2018)
LGL, 2012 (by Tomas Vytautas Raskevičius and Sigita Rukšėnaitė)

The litigation strategy (original version in Lithuanian, 35 pages, accessible here) consists of two major parts, namely:

(1) the analysis of national legal situation with regard to LGBT rights and the development of corresponding priorities for legal, political and societal change; and

2) the analysis of the LGL’s capacity with the view of engaging into in the process of strategic litigation both in national and international fora.

The first part identifies the prevailing discrepancies between national legal provisions and international standards on LGBT rights protection in the fields of family law, trans rights, rights to freedom of peaceful assembly and freedom of expression, anti-discrimination policies in the fields of employment and provision of goods and services, hate crimes, education and health care. The European dimension is brought into the picture through the analysis of the relevant ECtHR’s and the CJEU’s jurisprudence. In identifying the priority areas of LGBT rights protection in Lithuania with the view of initiating the strategic litigation cases, the programme seeks to distinguish between two types of possible case scenarios, namely (1) ad hoc situations with prospective strategic impact on LGBT rights protection, and (2) prospective situations, requiring strategic legal engineering and careful planning. The identified priority areas could be summarized as follow:

Ad hoc case scenarios
Discrimination in the fields of employment and provision of goods and services
Effective enforcement of already existing legal protections, i.e. one of the most frequently encountered legal issues by the LGBT community in Lithuania.
Trans rights (in relation to gender reassignment procedure)
Requires initiated or already underwent procedure of gender reassignment. The main legal claims shall focus on violation of the principle of legal certainty (i.e. attempts to explicitly remove the possibility to change one’s gender from the Civil Code) and the state-funded coverage of gender reassignment costs.
Hate crimes & hate speech
The main purpose is to test already existing legal protections from hate crimes/speech with regards to sexual orientation. In addition to this, the category of gender identity shall be included into the law as a protected ground.
Case scenarios, requiring engineering and advance planning
Legal recognition of same-sex relationships
Dependent upon the legal developments nationally and internationally – it is hard to substantiate any claim as long as there is no legislation on registered partnerships in Lithuania. Reasoning on economic disadvantages shall be preferred over human rights discourse.
Trans rights (anti-discrimination policies)
The main purpose is to test, whether the national courts will interpret gender identity discrimination as falling under legal protection against sex discrimination. No national legal precedent whatsoever.
Rights to freedom of assembly and freedom of expression
The necessity to test allegedly homophobic legislative provisions, e.g. Law on Protection of Minors against Detrimental Effects of Public Information, before national courts. The LGL can initiate strategic case on its own motion due to the possibility of easily creating a situation, where legal sanctions could be applied directly to the organization.
In addition to this, the first part of the strategic litigation program engages with the prospects of employing strategic litigation in order to facilitate the organization’s advocacy work. Not only the advantages and disadvantages of strategic litigation method are being discussed, but also the possibilities of achieving certain organization’s goals and priorities through strategic litigation and other alternative strategies (e.g., political lobbying, social dialogue and awareness raising) are being compared. It is concluded that, bearing in mind the particularities of the Lithuanian national circumstances, strategic litigations program should be implemented as an additional element to the broader LGL’s advocacy strategy on promoting LGBT rights in Lithuania.

The second part builds upon discussing the LGL’s capacity to initiate and participate in strategic litigation process with regard to LGBT rights. First of all, it elaborates on the general situation regarding the possibility for associations or relevant human rights NGOs to represent victims before national courts. The amendment to the LGL’s Statute in order to be legally entitled to represent LGBT individuals before national courts directly is being proposed. In addition to this, the possibility for the LGL to intervene into the national proceeding as an interested third party or through the submission of amicus curae is being explored. Secondly, the strategy discusses the practical aspects of the LGL’s participation in the strategic litigation processes (e.g. general remarks on collecting evidence, fundraising, selecting a lawyer and preparing the claimant for the possible negative impacts of litigation). It is being emphasized that strategic litigation might serve as an additional component to the broader LGL’s advocacy work through raising public awareness, educating lawyers and judges on human rights standards and generating additional allies and supporters for LGBT rights through increased public visibility and prominence.

Finally, the SWOT analysis in relation to the LGL’s participation in the strategic litigation process is being conducted, resulting in additional recommendations how to expand on LGL’s capacity in this particular regard. The main strength of the LGL is its expertise and closeness to the community as the sole LGBT human rights organization in the country. The main weakness of the LGL is its limited human and financial resources, which require serious consideration before engaging in the strategic litigation process. The main opportunity for the LGL is to strengthen its capacity through the engagement in strategic litigation process and to position itself as a qualified, competent and skillful organization. The main threat for the LGL is that engagement with strategic litigation might consume the organization’s resources to the extent that would negatively influence or even undermine the organization’s advocacy work. The recommendations are generated accordingly in order to respond to the insights, generated through the SWOT analysis.