European Western Balkans
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Is Serbia ready for the Law on Same-Sex Unions?

LGBT flag; Photo: Unsplash / Bruno Aguirre

“If you do not like the same-sex unions, do not live in one,” said the Minister of Human and Minority Rights and Social Dialogue, Gordana Čomić, for N1 television. These words of the Minister of the recently established Ministry come at the time of heated discussions on the draft Law on Same-Sex Unions.

At the beginning of the year, the Ministry started public consultations to draft the law that should regulate the conditions for the conclusion and termination of the same-sex unions, the legal effects it produces, property relations, taxes, pensions, as well as the unregistered same-sex unions.

In mid-March, 212 members of the Coalition for the Natural Family, published a petition against enacting three laws – the Law on Same-Sex Unions, the Law on Gender Equality and the Law on Prohibition of Discrimination. The petition, as some media labelled it the “petition of intellectuals”, called the Ministry to withdraw the drafts and to stop the process of their adoption.

The Coalition stated that the draft of the Law on Same-Sex Unions is “unnecessary, bad and unconstitutional”, as well as that its adoption would “endanger the state’s pro-natal policy”.

Disparaging views were also expressed on the drafts of the other two laws, with the Coalition for the Natural Family describing them as “new violence against the public space”. In addition to this, they have invited the public, traditional churches, and religious communities to react and “to defend the right to freedom and the future of Serbs”.

Over 1600 members of the educational, scientific, cultural and artistic community wrote a petition as a counterbalance. They expressed their support for LGBTI+ rights and people, which, as they said, is reflected in the adoption of the Law on Same-Sex Unions.

“We believe that this is part of the struggle for a better society based on the respect of equality and human rights, in which none of its members will be stigmatized or discriminated against,” the signatories stated.

They added that the Law on Same-Sex Unions is only the first step in exercising the rights of LGBTI+ people so that their most basic needs are recognized and legally regulated.

“The law should enable them to have the equal rights to love and be loved, to build a life together with their loved one, to inherit the property of their partner and to enjoy all the rights and responsibilities that heterosexual people enjoy without question. Enacting such a law, LGBTI+ people will not get any special or different rights, but the right to live a life that is common for most members of society,” the signatories explained.

What is the public opinion on LGBTI + rights?

A public opinion poll conducted by the Civil Rights Defenders (CRD) on key issues related to LGBTI+ rights and challenges in Serbia shows that Serbia is ready for the Law on Same-Sex Unions.

The CRD presented a comparison of the attitudes of the people from the Western Balkans, from 2015 and 2020. The results show that 73% of respondents support the right of LGBTI+ people to visit their partner in hospital or prison, which is an increase in comparison to 2015 when support was 46%.

The increase is also noticed when it comes to supporting the right of LGBTI+ people to have health insurance based on partner’s insurance, from 35% to 60% in 2020. A similar increase in support was observed when it comes to the right of LGBTI+ people to inherit a partner in the event of the death of their partner – from 34% to 59%.

For the past 5 years, the support has almost doubled in terms of inheritance of the pension in case of partner’s death, as well as the distribution of property in case of termination of cohabitation.

On the other hand, the percentage of people who think homosexuality is a disease has dropped from 66% to 57%, while the percentage of respondents who think “homosexual people are like everyone else” has risen from 63% to 80%, as has the percentage of people who would support LGBTI+ group to walk peacefully in Belgrade – from 45% to 68%.

Director for Europe and MENA of the Civil Rights Defenders, Goran Miletić, says that the research came as an idea to measure changes in public opinion across the Western Balkans after five years.

“The initial poll was the largest in this region and was conducted in 2015, and this new one showed that positive changes are visible in all countries of the region. The most important change is the percentage of citizens who agree that LGBT people should have equal rights like everyone else,” explains Goran Miletić for the European Western Balkans.

He points that with this poll, CRD paid special attention to measuring the citizens’ attitudes regarding certain rights that will be regulated by this law.

“The results of the poll show that the opinions of citizens are changing slowly, but we cannot talk about them remaining the same or completely conservative without the possibility of change,” Miletić explains.

What is proposed by the law, and how did the consultation process with the Ministry go?

In the Annual Work Plan of the Government of the Republic of Serbia for 2021, it was noted that the Ministry of Human and Minority Rights and Social Dialogue (MHMRSD) should submit the Draft Law on Same-Sex Unions to the National Assembly by the end of the year.

At the beginning of the year, the Ministry invited all interested parties to take part in public consultations for drafting the text of the Law and selected the seven most representative civil society organizations, which were included in special working groups for drafting the Law – Civil Rights Defenders, Regional Info Center, Labris, Geten, “Da se zna!”, Egal and IDEAS Centre for Research and Social Development.

The starting points for drafting the law prescribed the conditions for the conclusion and termination of a same-sex unions, the legal effects it produces, property relations, taxes, pensions, but it also regulation an unregistered same-sex unions.

Some of the comments the Ministry received on this Draft Law aimed at preventing the process of adoption of children and the right to biomedically assisted fertilization of members of the same-sex unions, although this law does not regulate it.

“This law defines the form of family life. It is a human rights law, and it cannot imply changes in the family law. This way, Serbia will acknowledge that there is a group of people – 10% of the population, who cannot exercise their constitutionally guaranteed rights and who have before them the judgment of the European Court of Human Rights Oliari v. Italy, which the Council of Europe asked their Member States to respect and to implement. And that is what we are doing,” said Minister Gordana Čomić in the TV show Kvaka 23.

Are CSOs satisfied with this Draft?

Goran Miletić explains that all LGBT organizations strongly support the adoption of this law. However, as he says, they are currently not sure what the draft law that the Ministry will send to the Government for consideration will look like.

“If this is the last text that we as members of the group have seen, there are still a few important articles that need improvement. More precisely, those articles are concerning the unregistered unions, the submission of registration reports to countries where one of the partners is threatened with persecution, support of the partner, etc. Also, it is proposed that implementation of the Law starts only a year after its adoption. We hope that all these shortcomings will be addressed before the Law is forwarded to the Assembly,” Miletić states for the EWB.

He explains that, although there was a possibility for each LGBT organization to be included in the working group and a very open possibility for everyone to submit their proposals and suggestions, almost all proposals that came from LGBT organizations were rejected.

“At one of the meetings, several important proposals were adopted by the majority of the members of the working group, but then at the next meeting, all of them were annulled and the process was returned to the beginning. It can be concluded that we cannot be completely satisfied with the way the civil society is involved,” Miletić points out.

He adds that the process is still ongoing and that in the end, the most important thing will be the result.

“There is still some time left, although I am afraid that the proposals coming from those affected by the law will be ignored,” Miletić states.

In Kvaka 23, Minister Čomić pointed out that she hopes that all three laws would be passed at the spring session of the Assembly in May – on the same-sex unions, on the prohibition of discrimination, and the one on gender equality.

Which are the documents that bind Serbia?

With the EU accession process, Serbia committed itself to harmonization of the domestic legal system with the EU acquis. Serbia is a member of the Council of Europe, which means that it has accepted to follow and respect the CoE human rights standards and the case law delivered by the ECtHR. As a member of the United Nations, Serbia is a contracting state to the core human rights treaties. When it comes to the domestic legal framework, the Constitution and other laws oblige Serbia to respect human rights.

Taking all this into consideration, if the question – why the law-making process did not start earlier, is asked, the answer would probably be – “social circumstances were not appropriate”.

Minister Čomić, on the other hand, has a different opinion.

“These are the misconceptions of the public in Serbia that social narratives and circumstances have to be created to pass the law. No. Human rights laws have to be imposed on society and you need to have strong beliefs about what those laws change so that you can stand behind them. The natural state of society is the will to discriminate. You have to inflict the conditions for some law to be applied,” said Čomić for Kvaka 23.

Having in mind the previously mentioned public opinion poll, which proves that the society in Serbia is ready for such a law, as well as the will of the Ministry to “impose” the law to the society, there should be no problem with its adoption.

How did the process of adopting the Law on Same-Sex Union go in the region – the case of Croatia and Montenegro?

Croatia is the first country in the region that took steps towards the legal regulation of same-sex unions. The policy paper “Is love equal before the law” by Civil Rights Defenders shows that in 2003, Croatia formally recognized these unions for the first time with the Law on Same-Sex Unions. A further step was taken in 2014 when Croatia adopted the Life Partnership Act, which granted same-sex couples in Croatia the same rights as heterosexual couples, except for adoption rights.

Thus, Croatia has managed to provide to some extent equal rights to same-sex couples, although public opinion polls, then and now, have shown a deep societal division on this issue.

Montenegro also passed the Law on Life Partnership of Persons of the Same-Sex, which, as in Croatia, gives same-sex couples the same rights as heterosexuals, except for the right to adoption. This law was passed last year, and it should enter into force on July 15 this year.

A poll conducted by CRD shows that the percentage of respondents who believe that LGBTI+ people should have at least some rights that will be regulated by the Law on Same-Sex Unions is the highest in Montenegro – 84%, while in Serbia it is 80%, which puts it in second place among the countries of the Western Balkans. In North Macedonia, the percentage is slightly lower – 79%, while in Bosnia and Herzegovina is 74%, in Kosovo 69%, and in Albania 60%.

Taking this into account, it can be said that Serbia, but also the Western Balkans, is ready to respect human rights standards and enact laws that will grant LGBTI+ people their human rights.

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