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Concept of Family is Gender-Neutral, Rules Lithuanian Constitutional Court

2019 / 01 / 28
After four years of litigation, the case of a Belorussian man who had married a Lithuanian man in Denmark and was refused a residence permit is finally at a close. The Constitutional Court has protected the right to family life of same-sex couples.

Residence permit denied

In 2015, a Belorussian man and a Lithuanian man registered their marriage in Denmark. Later that year, the Belorussian man applied to the Lithuanian Migration Department for a residence permit as a family member. His application was refused, with the authorities claiming that since same-sex marriages and partnerships were not possible in Lithuania, they could not register the union and grant family member status to the Belorussian man.

As far back as 2011, the Lithuanian Constitutional Court had ruled that the Constitution also recognised family models that are not based on marriage. The definition of family provided was a relationship between two people is based on “permanent emotional attachment, mutual understanding, responsibility, respect, shared parental duties and others, as well as a voluntary decision to assume certain rights and duties.”

And while the ruling did not concern same-sex relationships, human rights organisations had hoped that the outcome of the case concerning the Lithuanian and the Belarusian pair would finally clarify the 2011 ruling.

Constitutional Court rules in favour of the couple

The ruling, which was made on 11 January, is important in several respects. First of all, the Constitutional Court held that the Constitution prohibits discrimination on the grounds of sexual orientation and/or gender identity, and as such discrimination against LGBT individuals runs contrary to its provisions. Although the case concerned same-sex spouses, the Court also stated that discrimination was not permissible against transgender persons either. This is very important, since Lithuania still lacks a legal gender recognition procedure.

Second, the Court ruled that the Constitution was a counter-majoritarian document, meant to protect the individual. The prevailing beliefs and stereotypes at any particular point in time cannot be used to justify discrimination on the grounds of gender identity or sexual orientation, or limit rights to personal and family life, by calling for (as an example) public order. The legislature has a duty to “prevent violations of personal rights and freedoms, thereby protecting the person’s dignity” and should not rely on public stereotypes and misconceptions.

Third, the Court emphasised that the concept of the family enshrined in the Constitution was gender-neutral. The Constitution states that all families based on “mutual responsibilities, understanding, emotional attachment, assistance and other ties, as well as a voluntary decision to assume certain rights and duties” must be protected. This means that same-sex couples have the right to call themselves families and the status of individuals as family members cannot be questioned.

Lithuania now obliged to change practices

As such, the ruling goes beyond simply allowing a specific couple to create a family in Lithuania. From now on, Lithuania will be obliged to grant residence permits to third-country nationals who marry citizens of Lithuania in other countries, and the country’s legislature will have to immediately seek ways to legally protect same-sex families living in Lithuania and resolve the legal recognition of gender identity, which has been stalled for over a decade.

For more information see here and here.