By Dragana Peric

Although it has been carefully planned and expected for years, Anti-Discrimination Law was withdrawn from the procedure at the demand of four religious communities. With the support of Catholic, Islamic and Jewish communities, one single phone call made by Serbian Orthodox Church bishop Irinej was enough to suspend the adoption of the law - and it happened on a day when this regulation was to be sent to the National Parliament for the debate. Beside the fact that this pressure imparts democratic procedure, the discrimination issues have come up to the church dignitaries` antagonism toward same-sex marriages, although it is not even mentioned in Anti-Discrimination Law.

Religious communities have made the objection to the 18th article of the law, which guarantees the right to religious orientation, including the orientation of those who are traditionally excluded by these communities.

Their objections, however, concern 21st article also, which provides the privacy of sexual orientation and gender identity as well as full right to express it freely. Discriminations are prohibited, and this freedom regards transsexuality as well.

Serbia`s LGBT community was the most persistent to bring the law on a daylight. Perhaps that is the reason why the debate on that issue was so loud, so the claim that religious communities did not know about these intentions and thus did not take the participation in the debate is not reliable.

According to them, the major religious denominations should always be asked about their opinion on this law, in order to avoid the situation in which a homosexual couple wants to file a suit against a church which refuses to marry them. Majority has accepted the claims of churches, accenting the unacceptability of same-sex marriage, despite the fact that the law doesn`t guarantee that.

A set of regulations, including the Constitution which defines marriage as a community between a man and a woman, has to be changed so that the same-sex marriages could be concluded in Serbia. Even if a same-sex marriage would be approved, a church may keep its autonomous right in such case, as it is in the Netherlands in which gay marriages already exist.

The state, however, has problems in keeping its autonomy in relation to church, not even in situations when a set of regulations has to be adopted so that the progress concerning the process of Euro-integration could speed up. EU has reacted on that issue, and commissioner of the Council of Europe Thomas Hammarberg has reminded that Serbia, being a member of the Council of Europe, is obligated to prohibit the discrimination on any level.

"Without the Anti-Discrimination Law, policy against discriminations, duties and aims would become informal and dispensable, which is the crucial reason why every country needs such regulation," says Hammarberg, explaining that this doesn`t imply the introduction of a new group of human rights.

Most of the Council of Europe`s country-members have already adopted, or intend to do so, the regulations on discrimination prohibition. Amsterdam Treaty which entered into force in 1999 binds EU countries to adopt Anti-discrimination law. It is up to the national legislation to adjust details, as it is regulated in the 13th article of the Amsterdam Treaty, but essentially all rights which have to be protected, and discriminations of any kind which have to be prohibited are underlined by the Amsterdam Treaty, among which are gender equality and sexual orientation.

Religious communities are not satisfied with the fact that the Amsterdam Treaty does not specify the exact limit of these rights, stressing that Serbia behaves far more tolerant than most of EU countries, allowing LGBT population such freedoms which are unknown to the half of the European Union.  

"The adoption of the Anti-Discrimination Law would send a message of equality, based on legal fundaments," says Dusan Maljkovic, founder of Gejten organisation, the first gay organisation in Serbia.

"One needs to understand that this law protects everyone and most of us from being discriminated in any kind - orthodox believers and heterosexuals, for it prohibits religious or sexual discriminations. Secondly, it would provide the legal protection of marginalised groups, which means that in cases of any harassment or the violation of human rights one has right to judicial verdict. And finally, it creates more tolerant cultural climate toward minorities and provides an attitude that none should be punished because he or she are homosexuals or Jehovah`s Witness," explains Maljkovic.

But after the draft law was withdrawn from the procedure, two incidents have occurred. Gay activists have been attacked twice in couple of days, and it was not set up so as to demonstrate the lack of their protection. If there was a law which would prohibit sexual discrimination, an attacker could be accused of sexual discrimination. But without the law, the essence slips away, and attackers might be punished as rioters.

According to the "Coalition against discrimination" research, most of the attacks on gay and lesbian people never reach the judicial epilogue.

"Although it does not explicitly mention sexual orientation, the Constitution prohibits discrimination on the basis of `other personal characteristics` and four laws specifically prohibit sexual discrimination. Thus, discrimination is not allowed, but Anti-Discrimination Law would create a path toward the further reduction," explains Maljkovic.

Europe is the most liberal region for LGBT population, because the same-sex relationships have been legalised in all European countries. Most of them have the anti-discrimination regulations, which still wait to be adopted in countries like Albania, Armenia, Azerbaijan, Belarus, Montenegro, Liechtenstein, Macedonia, Moldavia, San Marino, Ukraine and Turkey.

Freewill sexual relationship between two men has stopped being felony during Slobodan Milosevic`s government in 1994, while the sexual relationship between women was never prohibited.

Same-sex communities have been legally recognised in more than 20 European countries, which practically guarantee them the same rights married couples enjoy. This recognition, as well as the adoption of anti-discrimination law, was problematic in distinctive Catholic countries like Croatia and Spain, but despite everything their governments have disregarded the Church pretensions.

In fact, Spain, together with Belgium, Norway and Holland, recognises the same-sex marriages. Approximately ten European countries approve the children adoption by the same-sex communities: it is allowed to adopt either a partners` biological child, or one partner is allowed to do so. In some cases both partners are allowed to adopt a child.

Though "acquis communautaire" (common set of regulations for all EU members) mentions absolutely nothing on, for example, children adoption by homosexuals, European Parliament Resolution from 2000 requires that every EU country should ensure equal rights to same-sex partners as traditional families enjoy.

The public opinion on that subject differs from country to country. As for the Eurobarometer research, high level of support is evident in countries like Holland (82 percent), Sweden (71) and Denmark (69), as opposed to the Romania (11 percent), Latvia (12) and Cyprus (14).

In Serbia, 30 percent of population believes that homosexuality has nothing to do with any kind of illness, as the World Health Organisation has declared so 20 years ago, and Serbian Medical Society in 2008. Maljkovic believes that it can be considered as a certain progress, for until recently only ten percent of people have shared the same attitudes with these two associations. As for the disputable draft law, Maljkovic is optimistic too, because Serbian government cannot avoid it in any way.

"I think compromise will be reached. I myself am one of a rare who belongs `to the other side` but at the same time believes that the Church has the right to stand up for its opinion and that the Church`s attitude should be equally respected because it represents the majority of this country. But its attitude should be limited by the Constitution which makes sure that the reached level of human right within a community must be sustainable, which Church may not inevitably follow. It is a question of ethics, of course. As far as I am concerned, corrections concern the attitude that community members cannot be responsible if religious community`s doctrine is respected, which may lead us to problems, because doctrines can be differently interpreted," explains Maljkovic.

It is expected that a part in which transsexuals are guaranteed the same rights on the basis of sexual orientation will be expelled from the 21st article, but it should be compensated with a new paragraph in 20th article which prohibits public or disguised discrimination on the basis of sex or sex change.

Insisting on that issue seems a bit uncommon, since Serbia legally recognises gender transformation and has, moreover, reached a medical success in these operations. One of the well-known experts on gender transformations lives and works in Serbia. The traditional religious communities` claims may indicate that their aim was to announce their populistic attitude, intended to satisfy their followers. But the Serbian Government`s reaction proves the significant influence of religious communities and their superiority over democratic processes.