An Uncertain Step Toward Marriage Equality

In Arcadia’s bulletin, which was the first lesbian and gay association in Serbia, the following  was reported from an International Lesbian and Gay Association (ILGA) held in Helsinki in 1994: 

Partnership and parenthood are of great importance for homosexuals in Europe because except in a few countries such as Denmark, Sweden, and Norway, it is not possible to legally marry people of the same sex in other countries, leading to discrimination in certain life situations, for example when it comes to matters of property, making decisions on medical interventions, adoption, joint parenthood, as well as other social benefits that only spouses are entitled to (...) There is a transitional version in the Netherlands, where there is no marriage but there is something called a registered partnership, and going to a certain office to have their status legally recognized is enough and it is pretty similar to marital status. 


Apparently, the author of the report confused activist plans with the real situation. The Netherlands legally recognized registered partnerships three years later, and in 2011 became the first country in the world to legalize same-sex marriage. Sweden and Norway legalized same-sex marriage eight years after the Netherlands did, while Denmark did it in 2012. Despite these oversights, this snippet illustrates exactly how long the queer community in Serbia has been talking about marriage equality, but also how important it is. 

However, wanting something is not the same as fighting for it. In the mid-1990s, homosexuality had just been decriminalized, and goals which were more attainable at that moment needed to be addressed - having homosexuality removed from the list of disorders of the Serbian Medical Society, equating the legal limit for sexual intercourse for same-sex couples with that of heterosexual couples, as well as ensuring that discrimination based on sexual orientation and gender identity is forbidden despite the strong opposition from the Serbian Orthodox Church. Only after the Law on the Prohibition of Discrimination was adopted in 2009, were the minimum preconditions met for the queer movement to start a direct fight for marital equality. That is how Labris, the oldest association of lesbian, bisexual and trans women that is still active in Serbia, drafted the Model of the Law on Registered Same-Sex Partnerships with legal experts the following year. Other queer organizations and human rights protection organizations agreed on its content. After that, Labris launched a campaign for legal recognition of same-sex partnerships under the slogan Love is the Law which was voted an official slogan for the campaign for supporting the Law on same-sex partnerships by the queer community in March this year. 

A decade long struggle 

At the beginning of the 2010s, the queer movement in Serbia started its race for marriage equality with a hurdle that most queer movements in other countries did not come across - years and years of violation of the freedom of assembly. Years after the collective trauma caused by the “Bloody Pride” from 2001, when over forty people were injured in an attack by right-wing organizations, amid inadequate police protection, organizing Pride parades was avoided. After five successive years during which the Government of the Republic of Serbia was banning public assembly of the queer community, the Pride Parade was first organized again in 2014 and has been going on ever since. 

This was followed by the historic ruling of the European Court of Human Rights (ECHR), which encourages the fight for marital equality in all member states of the Council of Europe, including Serbia. In the case of Oliari and others v. Italy, the ECHR unanimously ruled in 2015 that the appellants under the European Convention of Human Rights had their right to privacy violated because the three gay couples’ requests for registering their partnerships were rejected. 

The ECHR concluded that all member states of the Council of Europe are obligated to regulate same-sex partnerships. Since Article 18 of the Constitution of the Republic of Serbia defines that human and minority rights are directly applied and interpreted in accordance with international human and minority standards, as well as the practices of international institutions that oversee their implementation, the queer movement had a powerful tool on its hands for advocating marriage equality. 

It is interesting to note that the Action Plan for the implementation of the Strategy for the Prevention and Protection against Discrimination from 2014 defines changes in the legal framework for the prevention of discrimination regarding marriage, family relations, and matters of inheritance between members of the queer community, as well as opening a public debate on the possible recognition of same-sex partnerships and consequently, the recognition of inheritance rights of same-sex partners, as well as other mutual rights and duties. The deadline set by the state for this was the last quarter of 2017. However, not only was the Draft of the Law on Same-Sex Partnerships not compiled until this year, but not a single activity has been initiated by the competent authorities which would have resulted in awareness-raising among the general public on the necessity of regulating this issue. The drafting of bylaws for the prevention of discriminatory practices regarding marriage and family has not even begun. It is the same with analyses, amendments to the Family Law in order to prevent discrimination against queer people, in the sense of recognizing same-sex extramarital unions. 

Labris initiated three strategic lawsuits in 2018, with three lesbian couples. Namely, the couples tried to get married in Belgrade and Novi Sad and were rejected. Afterwards, proceedings were brought before the Administrative Court with the aim of initiating proceedings before the Constitutional Court and possible initiation of proceedings before the ECHR if the Constitutional Court does not recognize the right to same-sex unions. The same year, the Pride Parade was held under the slogan “Say Yes!” with a clear demand for the state – the adoption of the Law on Same-Sex Partnerships. 

Last year Labris drafted a new advanced version of the Model of the Law on Civil Partnership, while Da se zna! and other organizations included in Belgrade Pride launched a campaign for the adoption of the Law on Same-Sex Partnerships called “The pebble in our shoes”. Many activities were carried out as part of this campaign, and alongside the queer community, many celebrities such as Nataša Bekvalac participated. Alongside this social and digital media campaign, there was also an action where activists sent “packages” to the clerk’s office of the National Assembly for the MPs, which contained pebbles dyed in rainbow colors as well as notes with reasons why we are asking for the adoption of the Law on Same-Sex Partnerships. As part of the campaign, there was also a petition for the adoption of the Law, which was signed by 12.000 persons. Da se zna! wrote a public letter to Ana Brnabić entitled Drugarice lažljivice (our lying friend) in which they referred to the tokenism in which the Prime Minister participates by minimizing the problems of the queer community and using the fact that she herself is openly gay to ignore policies that would result in the improvement of the position of the entire queer community. The letter, signed by hundreds of queer individuals, ends with the following words: 

We are not yet another item you can check off your list on your way towards EU membership. We are the citizens of the Republic of Serbia, but humans above all, humans with names and surnames, whose rights have been denied. We understand that you yourselves have never experienced what it is like to be rejected by your parents because of your sexuality or gender identity or to be assaulted on the street, harassed at work, or ostracized by society, and we are glad there are LGBT+ persons that have not been through all of this. However, being privileged does not mean you should stay silent regarding our fate while saying you have done a lot because, in fact, you have not done anything. 

We will probably never find out whether it was the strategic lawsuits, colorful stones, or whether it was these harsh words that reached Ana Brnabić, but it is certain that at the end of last year, things were finally set in motion. 

Troubles with the Law 

The current government is disappointing in many ways. Ministerial positions were taken by at least three homophobes. Zlatibor Lončar and Nenad Popović kept their positions despite the fact that the Commissioner for the Protection of Equality determined that they discriminated against the queer community, and then ignored the recommendations of this institution. The only worse thing than the establishment of the Ministry of Family Welfare and Demography is the fact that Radomir Ratko Dmitrović was appointed minister, a minister who calls unions with same-sex parents quasi families, while wondering how children with same-sex parents can build identity and what it is that people at Pride Parades are so proud of. However, Gordana Čomić, Minister of the newly formed Ministry of Human and Minority Rights and Social Dialogue, announced the adoption of the Law on Same-Sex Partnerships as one of the first steps in improving human rights. The prompt open call to civil society organizations to submit a candidacy for membership in the Working Group for drafting the Law on Same-Sex Partnerships showed that there was finally political will to pass the Law. Based on the nine received applications, the commission composed of representatives of the Ministry made a decision on the admission of seven candidates from civil society organizations. Civil Rights Defenders, Regional info center, Labris, Da se zna!, Ideas, Geten, and Egal were given the opportunity to directly influence the content of the Law. In addition to the representatives of civil society, the working group included representatives of the ministries, the Statistical Office of the Republic of Serbia, the Public Policy Secretariat of the Republic of Serbia, the Ombudsman, the Commissioner for Information of Public Importance and Personal Data Protection, as well as prof. Dr. Saša Gajin, the author of Labris's Model of the Law on Civil Partnership. Despite the promises made by the Ministry that Labris’ Model of the Law on Civil Partnership will be taken as the starting point, this was prepared by an expert group composed of a queer activist and scientific advisor Dr. Zorica Mršević, the former Commissioner for Protection of Equality prof. Dr. Nevena Petrušić and prof. Dr. Marijana Pajvančić. Labris analyzed the shortcomings of the Expert Group's starting points and submitted a request that their Model of the Law on Civil Partnership be taken as a starting point supported by Civil Rights Defenders, as well as other queer human rights organizations, including Da se zna! Gordana Čomić rejected this request, explaining that it was not the task of the Working Group to make changes in the starting points but to work on the proposed text. Gordana Čomić's opposition to the replacement of the starting points resulted in having to change the text the Ministry proposed in the smallest details, which greatly hindered the job of the Working Group. In addition, Gordana Čomić rejected many comments on the starting points without explanation, talked with her associates while others were speaking, which led not only to a dismissal of certain members of the Working Group but also of the Draft Law, which still needs changes. For example, at the last meeting of the Working Group, the subject of discussion was the condition for the existence of an unregistered same-sex partnership. An unregistered same-sex union was defined as a union of two same-sex individuals who did not enter the same-sex union before a competent authority and was defined as a union in cases where the union has lasted at least three years. However, the unregistered same-sex union can be acknowledged even when the union is not older than three years but there are co-owned assets involved. Predrag Azdejković from the Regional Info Center suggested that the definition of unregistered same-sex unions should be changed based on the wording related to extramarital unions from the Family Law so that the specification of continuous cohabitation is replaced by a more general wording "long-term cohabitation ". The representative of the Ministry explained that the term "long-term cohabitation " is subject to interpretation and that the concretization of cohabitation prevents possible interpretations of this term based on prejudices. Goran Miletić from Civil Rights Defenders pointed out that comparable matters must be regulated in the same way and that the specification of the duration of extramarital unions exposes Serbia to potential lawsuits before the European Court of Human Rights. Prof. Dr. Saša Gajin pointed out that referring to joint assets as a condition for the existence of an unregistered same-sex marriage is “total nonsense”, given that joint assets can be achieved only between individuals who have already entered a same-sex union. Čomić rejected comments made by Goran Miletić and prof. Dr. Saša Gajin without explanation. A couple of weeks later, the Commissioner reiterated these and other comments in her opinion on the Draft Law, and civil society organizations requested amendments to the Draft Law in accordance with her opinion before it gets adopted by the Government, in another attempt at reaching the Ministry, at least through the Ombudsman. 

Despite the lack of understanding for the queer community, it is encouraging that Gordana Čomić has announced that the Ministry will initiate a training program with  judges regarding the Law, in which the civil society organizations will be included after its adoption at the session of the National Assembly in May. The president of the Serbian Patriotic Alliance, Aleksandar Šapić said that the MPs from the Alliance will be voting for the Law on Same-Sex Partnerships alongside a couple of MPs from the Serbian Progressive Party. Among the non-parliamentary political options, the Law on Same-Sex Partnerships was unequivocally supported by the Movement of Free Citizens, while Ne davimo Beograd turned out to be the most progressive option by showing their support when it comes to adoption by same-sex couples, which is a right that is unfortunately not covered by the Draft Law.

This article was first published by the Belgrade office of the Heinrich-Böll-Foundation