Author: Branko Ćulibrk
Social discrimination against sexual minorities is still prevalent in many European countries, but respect for the rights of LGBTIQ people is a critical issue in the process of EU integration of BiH, and it is an integral part of the EU accession negotiations as well as the EU Commission’s annual progress reports.
Unfortunately, LGBTIQ human rights in BiH are being violated on a daily basis, and one of the reasons for this is the authorities’ unwillingness to establish institutional and legal mechanisms to protect this category. On the other hand, continuous pressure is required to first implement existing laws and then adopt new laws that guarantee and protect the rights of LGBTIQ people. At the moment, it appears that the EU integration process of Bosnia and Herzegovina is one of the most important international processes bringing about these structural changes.
We should note, however, that progress is evident in the international and local recognition and condemnation of violations of the right to sexual and gender self-determination as a human right.
Adoption of the 2021-2023 Action Plan for the Promotion of Human Rights and Fundamental Freedoms of LGBTIQ People in Bosnia and Herzegovina, adoption of the law on same-sex partnerships and legal recognition of gender identity, as well as coverage of the cost of gender reassignment through health insurance are listed as priority measures that should be implemented within the progress report.
It is further stated that the legislative and institutional framework on fundamental rights is largely established. The adoption of the “2021-2024 Action Plan for the Promotion of Human Rights and Fundamental Freedoms of LGBTIQ People in Bosnia and Herzegovina” in July 2022 is particularly significant during this reporting period. The Action Plan focuses on three general goals: equal opportunities and the prohibition of discrimination, equal rights in all aspects of life, and a society that respects diversity. Although it is stated that the adoption of the Action Plan represents a confirmation of BiH’s commitment to contribute to the respect, protection, and realisation of LGBTIQ people’s rights and freedoms, as well as the suppression of prejudices and stereotypes in society, research conducted by the Sarajevo Open Centre shows that the LGBTIQ community has low trust in the work of institutions. It will undoubtedly be necessary to investigate whether good practise in achieving the Action Plan’s goals will contribute to LGBTIQ people feeling safer and more accepted in BiH society.
It is worth noting that the EU Parliament invited BiH authorities in 2016 to enact and adopt an anti-discrimination strategy throughout the country, emphasising the importance of including a clear definition of gender identity and sexual orientation in the Law on Prohibition of Discrimination.
Furthermore, the EU Parliament has expressed particular concern about violence and hate speech directed at LGBTI people. The Parliament requested that BiH authorities take measures to raise awareness among citizens, the judiciary and agencies, and all other competent institutions in charge of ensuring the enjoyment and protection of LGBTIQ rights throughout the country. This would include, among other things, protection from discrimination and violence, as well as equal treatment in exercising the right to freedom of public assembly for LGBTIQ people and all other citizens.
The Pink Report – Annual Report on the State of Human Rights of LGBTIQ Persons in Bosnia and Herzegovina, on the other hand, shows that the situation on the ground is very different. This report emphasises the increasingly common abuse of LGBTIQ human rights on the political scene, as well as the use of this topic to settle accounts with political opponents, and the ever-present hate speech. Furthermore, it is stated that the issue of same-sex partnerships in both entities and the Brčko District remains unregulated, as do challenges to freedom of assembly.
The annual progress report on BiH’s EU integration process states that laws on freedom of assembly have yet to be harmonised throughout BiH and in line with European standards, particularly when it comes to restrictions and responsibility of protest and assembly organisers. The restriction of the right to public assembly is most visible in the case of organising the largest activist protest for the rights of LGBTIQ people in Bosnia and Herzegovina, the BiH Pride March in Sarajevo, where organisers have been highlighting the disproportionality of the practise in the use of this right for the past four years. Every year, the organisers are required to provide additional security measures that the state and institutions are unable to provide, with costs of up to 30,000 euros. By meeting these requirements, a group of citizens is expected to ensure the exercise of this right, which is guaranteed by the BiH Constitution.
According to the EU Commission, freedom of assembly is generally respected; however, it has been reported that human rights defenders and civil society organisations working to protect the rights of LGBTIQ people face threats, harassment, verbal abuse, and physical attacks. Authorities are said to have failed to condemn and investigate such attacks in a timely and systematic manner. This brings us back to the noticeably indolent attitude of government and institutional representatives toward establishing mechanisms for compliance and enforcement of existing laws in order to protect LGBTIQ people in BiH. As one of the key priorities in this field, the EU Commission emphasises that authorities should promote a favourable and stimulating environment for civil society and ensure effective consultations on the development of legislation on freedom of association.
Furthermore, it is important to note that no relevant developments in the protection of LGBTIQ rights have occurred since 2009, following the adoption of the umbrella Law on Prohibition of Discrimination, and that only in 2022, for the first time, a court in BiH issued a first-instance verdict confirming discrimination based on sexual orientation, gender identity, and sex characteristics. This precedent is an important step toward not only increasing LGBTIQ community trust in institutions, but also strengthening standards and legal understanding of discrimination.
In terms of the legal framework in BiH, no concrete steps have been taken to regulate the civil union of same-sex partners, and the concept of intersex is not defined by the positive regulations in force. Bosnia and Herzegovina still lacks a law on same-sex partnerships, as well as a law on gender identity.
When it comes to the protection of individual rights, it is acknowledged that hate speech against LGBTIQ people persists, and the LGBTIQ community believes that Bosnia and Herzegovina lags behind other countries in the region in passing laws to protect their rights. Local organisations, on the other hand, are still proactively advocating for policy change in order to protect the rights and fight against violations of LGBTIQ rights. Activists fighting for LGBTIQ rights continue to face threats, abuse, and physical attacks. However, it is clear that significant reforms are required to ensure that all citizens can fully exercise their political rights, which should also contribute to the harmonisation of the constitutional and legislative frameworks, as well as the improvement of the practise of law enforcement institutions and authorities.
The views expressed in this text do not necessarily reflect the views of the Initiative for Monitoring European Integration’s members or the Initiative itself.