Although the Law on Prohibition of Discrimination exists since 2009, until now, no law suit for the discrimination of LGBT people has been raised. On the other hand, the conducted research tells us about the social exclusion and inequality of this minority group. The same is with the other minority groups, as Roma people, or people with disabilities, there is a very low number of law suits. That is why it is necessary to amend the anti-discrimination legislation. On that behalf, we talked to Saša Gavrić, the executive director of the Sarajevo Open Centre.
LGBT.ba: What is currently happening with the Law on Prohibition of Discrimination?
GAVRIĆ: Law on Prohibition of Discrimination was adopted in 2009, not necessarily from an inland need, but because of the international rush. The Law prohibits discrimination based on the sexual expression or orientation, which represents a bad definition and derogates from the settled law terms, having in mind that the law terms used are “sexual orientation” and “gender identity”. From 2009 till today we do not know of any judicial process that relates to discrimination of LGBT people. The European Union recognized the need to amend the Law, and it requested the harmonisation of the laws with the EU rules, while the law practice came to a conclusion that there must be a change in the procedural provisions of the Law.
LGBT.ba: Sarajevo open centre and the Agency for Gender Equality of Bosnia and Herzegovina created a series of amendments on the Law. What are the key proposals regarding the discrimination of LGBT people?
GAVRIĆ: The protection of LGBT people from discrimination is a part of wider changes that relates to the discrimination of all minority groups. That is why our amendments do not relate only to the protection of LGBT people from discrimination, but we also suggested a whole package of amendments, from which, if they are to be adopted, LGBT people and others, should benefit from. One of the key changes that we suggest is a better determination of ground on which discrimination is prohibited. Our proposal anticipates the prohibition of discrimination based on sex, gender, sexual orientation, gender identity, gender expression and inter-sexuality.
If these bases are adopted, the Law would explicitly protect all the LGBT people, but also inter-sex people and all the people who, because of their looks or sexual orientation, in any way deviate from the hetero-normative, binary, male-female majority. I particularly hope that the proposal for including inter-sexuality as a basis on which discrimination is prohibited, for the purpose of better protection of inter-sexual people about whom we almost don’t even speak in BiH and in the Region, will be accepted.
LGBT.ba: What other proposals have you set forth?
GAVRIĆ: In our set of amendments we focused on two types of problems. First, we wanted that all the provisions of the Law are harmonised with the EU law, that is, with legal documents of the European Union, like the founding agreements, the Charter of Fundamental Rights, or the anti-discrimination directives, having in mind all those being a duty for Bosnia and Herzegovina, and that the question of discrimination is solved in a good way through the EU documents. Therefore, we, for example, suggested a significant cut of the provisions of the Law that deal with exceptions, respectively with the possibilities of digressions from the guarantee of prohibition of discrimination, and that give the religious communities a big space to discriminate, without being responsible. Our second goal was to fix the procedural provisions, actually the parts of the Law that speak about the ways of filing law suits and proving them, with the hope for protecting all the victims of discrimination, including LGBT people.
LGBT.ba: What if the LGBT cases still appear in the courts?
GAVRIĆ: We have dealt with this question, too, and concluded that, through the amendments of the Law, the obligations for the Ministry of Human Rights and Refugees to work on the prevention and fighting discrimination must be created. Our proposal is to compile a strategy for prevention and fighting discrimination that would, in a few next years, define the particular goals and activities that must be implemented in order to work on the prevention of discrimination, so there wouldn’t be any judicial proceedings. The strategy would cover the prevention of discrimination for different minority groups, and in the case of LGBT people it could include the education of state officers about LGBT people and discrimination, organizing media campaigns for raising awareness, or establishing new laws that would protect the LGBT people even better.
By the way, I have to remind us all that any discriminated LGBT person can always contact SOC’s legal advisory, and if they decide to set forward a case, they can count on our free legal assistance.
LGBT.ba: What are the next steps?
GAVRIĆ: Thanks to the proposal of the OSCE Mission to Bosnia and Herzegovina, SOC has gotten an in-official observation status in the working group of the Ministry of Human Rights and Refugees of Bosnia and Herzegovina, whose task is to create the Law’s amendments. In the coming months, we will be actively advocating not to go for the minimal, cosmetic changes, but to work on a new law that would be referred to the parliamentary procedure this year. Having in mind that we have great contacts with the particular representatives in the Parliament, we count on their support as well. The real job will by all means begin after the amendments or the new law are adopted, because then we will have to dedicate ourselves to the implementation of it, in order to introduce the wider community to the specificities of the discrimination of the LGBT people. We are looking forward to pursuing new challenges and little steps of progress to which we contribute.
LGBT.ba hopes that the amendments and the additions to the Law will result in a better Law on Prohibition of Discrimination and that we will continue to create better legal frameworks for the protection of all the citizens, including LGBT people.