Foreword: Bosnia and Herzegovina (BiH) is divided into three federal units: two entities – the Federation of Bosnia and Herzegovina (FBiH) and Republika Srpska (RS) – and one district: District Brčko. FBiH is further divided into 10 cantons. Legislative authority for FBiH and RS reside in their respective law-making bodies. District Brčko is a special administrative unit within BiH. The Constitutions/statutes of each entity, district and canton govern the powers that they have over issues related to legislation. The central government’s powers are limited.
I. Legal Landscape
Article 2 in the Constitution of BiH prohibits discrimination. However grounds such as sexual orientation, gender identity and sex characteristics are not included in the exhaustive list of protected categories.
The Constitution of BiH remains silent on gender eligibility for a marriage.
BiH decriminalised homosexuality in October 1991.
Age of Consent
Age of sexual consent is 14 and is equal for same-sex and different-sex acts in all three jurisdictions.
II.Equality and Non-Discrimination
The 2003 Law on Gender Equality in BiH expressly prohibits discrimination based on sexual orientation and gender. However, while subsequent articles cover direct and indirect discrimination in the fields of education, employment, social care, health care, sport and culture and public life and media, they do not consistently refer to sexual orientation.
The 2009 Law on Prohibition of Discrimination covers “sexual expression and/or orientation” in all aspects of public life, including education, employment, healthcare, provision of services etc. Since it was amended, the law makes clear distinction between sex and gender and both are covered by this law. However, sexual orientation remains undefined and the law does not explicitly include gender identity.
In December 2015 the Council of Ministers of BiH passed a Draft Law on Changes and Amendments to the Law on Protection from Discrimination. The draft offers to ban discrimination on basis of sex characteristics, thus providing better protection for intersex persons. In addition the Law will prohibit discrimination on the grounds of sexual orientation and gender identity by employing the updated accurate vocabulary. It also aims to prohibit discrimination on the basis of association with a protected group, improves definition of harassment and sexual harassment and introduces victimisation as a form of discrimination etc. The draft entered legislative procedure in April 2016.
The only independent human rights institution in BiH which has the mandate to establish a Division for eliminating all Forms of Discrimination and to monitor the implementation of the Law on Prohibition of Discrimination is the Institution of the Ombudsman. However, Sarajevo Open Centre (SOC) reports that the Ombudsman has performed very poorly mainly due to limited resources and lack of will. For instance the Ombudsman did not respond to the initiative of Civil Society Organizations (CSOs) to produce a special report on the state of human rights of LGBTI persons. The Ombudsman Institution started working on the report only after a decision from the Joint Committee for Human Rights in the State Parliament. The report is yet to be finalised.
National Action Plans
With some progress in the last year, LGBTI organizations in BiH are not happy with the engagement of institutions, which remains low and limited to certain issues. Information on discrimination is neither being collected nor analysed. They recommend that the fight for equality requires a more systematic and active approach. Up until 2015 LGBTI rights have not been a matter of public policy including strategies, action plans, operational plans etc. Neither international obligations, nor the needs of LGBTI individuals were included in public policies, nor were separate public policies addressing the rights of LGBTI persons.
Recently, following changes in government and intensified advocacy, cooperation between Sarajevo Open Centre and government institutions has resulted on several productive steps:
In 2016 the Ministry of Human Rights and Refugees started working on the Strategy for Human Rights and the Strategy for Combating Discrimination, inviting Sarajevo Open Centre to be one of two NGOs being part of the working groups.
The Agency for Gender Equality of BiH, the Gender Centres of Republika Srpska and the Federation of BiH have demonstrated significant commitment and understanding of broader gender concepts and have initiated the institutional work aiming for the equality of LGBTI persons in BiH.
In December 2015 the Government of Republika Srpska passed the Annual Operational Plan on the basis of the Gender Action Plan for 2016, which addresses a number of activities to be undertaken by the institutions of RS with regards to LGBTI rights. Significant focus has been put on addressing hate crime as well as mapping and planning for future activities.
In March 2016 the Government of the Federation of BiH passed their Annual Operational Plan which set out the activities to be realised by the entity. A state-level Operational Plan is currently being prepared and should be adopted by autumn 2016.
According to CSO’s this process has given an end to the marginalisation of LGBTI people by the government.
III. Surveys and Social Perceptions
Social, economic and political situation of LGBTI people
CSOs report that the majority of LGBTI persons are not out about their sexual orientation, gender identity. As a result the visibility of the community in BiH remains very low and social perceptions are harder to measure.
Polls and Surveys
Research conducted in 2015 by the US-based National Democratic Institute (NDI) reveals that 51% of LGBTI persons have experienced discrimination because of their sexual orientation and/or gender identity.
The poll also asked people what they would do if they found out their child was homosexual. The most common answer – from 44% of respondents – was that they would try to help “cure” them. The next most popular answer, at 11%, was to stop communicating with their child.
LGBTI community in BiH report very high cases of psychological abuse and verbal harassment by people on the streets who are also the main perpetrators of physical violence. The Institution of the Ombudsman recorded 8 cases of discrimination based on SOGI in 2015 and 11 in 2014. SOC has reported 6 cases of discrimination in 2015 and 3 cases in the first quarter of 2016. Four were cases of discrimination in the services sector, one in the health sector, another by border authorities, one in the workplace and two were cases of public incitement to discriminate against LGBT persons.
IV. Hate crimes and hate speech
Article 145 of the Criminal Code of BiH explicitly names sexual orientation as unlawful grounds for discrimination. It stipulates prison terms of six months to five years for any official responsible within the institutions of BiH who deny the civil rights provided by the Constitution, ratified international agreements, law of BiH, or some other regulation, on the basis of, among other things, sexual orientation. Provisions which penalise incitement to hatred, hate speech and violence are included in the Criminal Code of all entities but they are limited exclusively to grounds of nationality, ethnicity or religion.
The BiH Law for Protection from Discrimination does not forbid hate speech based on sexual orientation or gender identity. Amendments related to this topic are currently in parliamentary procedure. If adopted, hate speech based on sexual orientation, gender identity and sex characteristics will be prohibited.
In February 2016 the Ministry of Justice of the Federation of BiH prepared a Law on Changes and Amendments to the Criminal Code of FBiH which was adopted in Parliament. The changes include the regulation of hate crime committed on the basis of sexual orientation and gender identity. The changes, however, do not include the widened definition of inciting hatred that would allow for better processing of hate speech against LGBTI persons. Now all three federal units – Republika Srpska, the Federation and Brcko Distrikt – have hate crime regulation, covering sexual orientation. Gender identity is covered by the criminal codes of two entities as a protected characteristic – Republika Srpska and Federation of BiH, but not by the Criminal Code of Brčko District.
While BiH has no system in place for recording hate crimes, Sarajevo Open Centre reports an increase in cases of discrimination and violence on the grounds of sexual orientation.
According to SOC reporting and investigating of cases of discrimination and hate crimes is very weak. The Ministry of Human Rights and Refugees of BiH has still not established a database (a task it was meant to complete within 90 days from the passing of the Law on Prohibition of Discrimination in 2009). Court practice has shown that cases of discrimination are addressed inadequately. Meanwhile it can take up to three years for a case to be ruled on. Organizations report that they are not aware of a single case of discrimination on the basis of sexual orientation or gender identity being currently adjudicated.
The 2015 NDI study showed that 15% of LGBTI persons in BiH have experienced physical violence because of their sexual orientation and/or gender identity and that as many as 72% of LGBT people have experienced verbal abuse and harassment. This research did not include intersex persons.
Previously in 2013 a research by SOC conducted with 550 members of the LGBT community found out that, lesbians aged 20-30 are the most exposed to discrimination. Within this age group 74% report to have experienced some form of discrimination. They are followed by gay men in the same age group – 69.8%. A significant number of bisexuals – 61% have also experienced some form of discrimination. When it comes to violence, gay men who are out experience most violence (69%) followed by lesbians (62.5%).
In 2015 Sarajevo Open Centre documented 103 cases of hate speech and incitement to hatred and violence and 20 crimes and incidents motivated by SOGI.
On a positive note more than 1000 police officers in the Sarajevo Canton have received training on homophobic and transphobic hate crimes and have established contact points for sexual orientation and gender identity issues in four precincts. More than 180 police officers in other cantons have been trained.
V. Family Rights
The legislation of BiH does not allow for any form of union between same-sex couples and the current legal framework does not engage in protecting these relationships. There are currently no attempts to legally regulate life partnerships of same-sex couples at any level of government in BiH.
While it is believed that the majority of BiH citizens are against same-sex marriage the 2015 research by NDI showed that 30% of BiH population are in favour of same-sex couples having all economic, social and other rights that heterosexual couples have through marriage and civil partnership, with the exception of adoption.
Meanwhile, following the adoption of the Croatian same-sex partnership act, the number of LGBT individuals from Bosnia and Herzegovina wanting to enter registered partnerships in Croatia has increased. This has proven problematic because one document needed is the certificate of free marital status, on which the name of the intended partner, who according to the laws of Bosnia and Herzegovina must be of the opposite sex, needs to be provided. Certificates naming a same-sex partner would not be issued. LGBT couples have resorted to other methods of obtaining these certificates, stating they were needed for scholarship or job applications.
Public discussions have been opened. Members of Parliament are speaking out, giving support to LGBTI rights and same-sex partnership to be regulated by law.
Adoption (joint adoption and second parent adoption) and family planning
Official surrogacy for gay couples
Family laws in both entities of BiH and Brčko District define marriage and civil partnerships only as union between a man and a woman.
VI. Court Cases
In its latest decision, on the Oliari vs. Italy case the European Court of Human Rights ruled that same-sex partnerships are covered by the provision on protection of family life and that States have to guarantee at least the same level of legal protection to same-sex partnerships that they offer to heterosexual civil partnerships, in order to ensure compliance with this right.
In February 2016 the European Court for Human Rights handed down a decision on prohibition of discrimination (Art. 14) and the right to private and family life (Art. 8) deciding that the Republic of Croatia had acted discriminatorily in its consideration of a BiH citizen’s request for limited leave to remain on the basis of family ties. The initial request was denied on the explanation that the Law on Foreigners of the Republic of Croatia does not recognize same-sex partnerships as family.
VII. Transgender and Intersex rights
Current legal and social situation
According to SOC Annual Report for 2016, Trans persons in BiH are discriminated against in all areas of life on the basis of their gender identity and gender expression and are faced with a legal vacuum in terms of legal regulation of sex change.
SOC has made proposals in the framework of amendments to the Law on Protection from Discrimination. If successful, BiH will be the first country in Europe to offer protection based on sex characteristics, thus providing clear protection for intersex persons in the country.
SOC has also prepared a Gender Identity Law, calling entity governments for their adoption. The initiative is in procedure.
Access to gender reassignment procedures
Names can be changed at any time.
Transgender persons can now only change the sex marker in their official documents after they have completed full medical transition.
Access to health services
The lack of medical and financial support makes it difficult for transgender persons. Both the endocrine therapy and surgical procedures have to be done abroad and such costs are not covered by the state-funded health insurance.
The 2009 Law on Prohibition of Discrimination offers protection from discrimination in the field of employment – among other areas – on grounds of sexual expression and sexual orientation but excluding gender identity. Amendments to this law are in procedure and if adopted, the law will cover sexual orientation, gender identity and sex characteristics. All other laws in BiH, its entities and district must be implemented in accordance to the Law on Prohibition of Discrimination.
Article 8 of the FBiH’s Labour Law explicitly prohibits discrimination on the grounds of sexual orientation; however gender identity is not explicitly covered. The Brčko District Labour Law also protects individuals from employment discrimination on the basis of sexual orientation; gender identity is also not explicitly mentioned. Labour Law of Republika Srpska does not cover sexual orientation and gender identity explicitly as protected ground of discrimination but it prohibits discrimination on any characteristic not directly related to the nature of the work.
Surveys and data
According to data from 2015 NDI research, LGBTI people in BiH believe that the highest occurrences of discrimination and exclusion happen in the workplace (36%).
The Constitution of Bosnia and Herzegovina guarantees the right to education; however no current law mandates the provision of comprehensive sexuality education at school through a standardized curriculum. As a result the quality and quantity of sexuality education varies widely within the country.
LGBT education in schools
Reports reveal that there are different curricula in various regions some of which are strongly influenced by religious leaders and institutions.
In 2012 the Constitutional Court ruled that Law on primary education of Canton Sarajevo has to include another optional curriculum for students, which do not attend religious education and are against attending another similar education on ethics or religion. The Court ruled that children’s right of education was violated by the previous practice to only have a subject related to ethics and religion as an alternative to religious education. Prior to this ruling of the Constitutional Court since religious education is a regular subject in primary schools, students that did not attend this education for offered one a similar elective subject to attend, either ethics or culture of religions. A year after this ruling, in 2013, a new curriculum entitled Healthy Lifestyles was introduced for students from 5th to 9th grade in primary schools in Canton Sarajevo (just one canton in Fedration of BiH).. Part of the “Healthy Lifestyles” curriculum, are also issues such as sexual and reproductive health, gender positive values etc.
However we have to take into account that this curricula was only introduced as an elective subject in one Canton in Federation of BiH, while in nine other FBiH’s cantons, as well as in Republika Srpska i Brčko District the situation is still the same meaning religious education either has no alternative or the alternative is a subject related to ethics and religion.
Homophobic and Transphobic bullying
SOC reports that in December 2015 a 14 year-old boy from Sarajevo committed suicide after suffering bullying and sexual violence in school over an extended period of time. The boy’s parents and peers have claimed that he was a victim of violence and that his classmates had forced him to kiss a male friend while they were recording and that they tied and raped them with a rolling pin. The Institution of the Ombudsman and the Prosecutor of Sarajevo Canton announced that they would conduct a detailed investigation of the incident. In March 2016 they published a report stating that no evidence was found which would confirm the claims made by parents and that nothing in this case indicates that a crime was committed. To the request of SOC sent to Cantons and RS to put up posters with messages that homophobic peer violence will not be tolerated only three out of ten agreed.
The 2003, Gender Equality Law prohibits discrimination on a number of grounds, including sexual orientation and gender and covers among others the field of health care. The same applied to the 2009 Law on Prohibition of Discrimination. However these laws have still a long way to go before being harmonised with other laws and before the appropriate support and monitoring mechanisms are put in place.
The laws pertaining to health care do not specify sexual orientation or anything besides sex as a ground for non-discrimination. They do, however, specify that these laws guarantee right to health to any/all persons.
Access to health services
BiH has three forms of health insurance (national, extended and voluntary). However, as BiH does not recognize same-sex partnership it discriminates against LGBT individuals and their partners. Same sex partners are disqualified from health, taxes and other benefits in ways that heterosexual partners are not.
In a study, health institutions claimed not to have LGBTI patients and that they have not worked with such clients, thus not having relevant experiences or special services for them.
According to an ILGA-Europe study LGBTI people in BiH do not feel comfortable sharing their sexual orientation to a health care practitioner. However the percentage increased when asked if the information provided was necessary for proper medical care (56%). Meanwhile in the same study 80.8% of LGBTI people surveyed did not know whether health care providers in their country were sensitive to the health needs of LGBT people. This also reveals that a vast majority of LGBT people have never spoken about their sexual orientation or gender identity to a health care practitioner. Finally 8.2% of the people said they felt to have been treated worse because of their perceived sexual orientation or gender identity.
HIV/AIDS and MSM
The right to privacy of MSM has often been violated in BiH. Cases have been reported when private data has been misused by media by adding fuel to common perceptions that a patient’s disease is directly connected with their real or perceived sexual orientation and/or gender identity.
Blood and tissue donation
By law BiH does not discriminate towards gay and bisexual men to donate blood. However in 2015 SOC reported on one case of discrimination of a blood donor in Republika Srpska.
Statistics and research
XII. Public Events
The right to Freedom of Assembly and Association is regulated all across BiH. However, according to SOC, the state has not created a nurturing environment for the development of civil society.
There were no attempts to organize a pride parade in BiH, but there are other significant and visible LGBTI-themed events.
Other visible public events
Public events in BiH have been marred by attacks from homophobic attacks. Attacks have taken place during the Sarajevo Queer Festival in 2008, the Merlinka Festival in 2014 and again guests were attacked at the bar of the Art Kriterion Cinema in March 2016. In the latter case the police even managed to stop the perpetrators but later on released them citing the attack as violent behaviour (misdemeanour). CSO’s in the country have reported the failure of public prosecutors and other law enforcement agencies to adequately investigate and follow-up on those cases.
Such attacks have caused significant harm to the LGBTI movement in BiH especially in light of poor or inadequate protection from state institutions and the lack of measures against the perpetrators providing homophobic individuals with a sense of impunity.
Positively, the BIH Constitutional Court ruled in 2014 that authorities had failed to uphold LGBTI activist’s rights to freedom of assembly concerning the 2008 attacks.
XIII. Emigration / Immigration
LGBTI people leaving the country
SOC reports that recently the numbers of LGBTI people asking for help in seeking asylum has increased.
LGBTI people seeking asylum in the country
The recently adopted Law on Foreigners of BiH and the new Law on Asylum of BiH failed to recognize sexual orientation and gender identity as grounds for seeking asylum. The Law on Foreigners of BiH also omits the mention of sexual orientation and gender identity, which means they are also omitted from the anti-discrimination provision in the Law, and same-sex partnerships are not recognized as a basis for getting temporary residence in BiH.
XIV. Political Participation and Representation
According to SOC the majority of political parties and their representatives avoid engaging with issues relating to LGBTI rights. There are several reasons for this, from genuine lack of understanding and fear, to pragmatic calculations that it is unpopular to offer support to an unpopular minority.
Following General Elections in 2014 the level of cooperation has started to change significantly. Members of the Joint Committee for Human Rights of the Parliamentary Assembly BiH provided particular support. There are more and more representatives of the Parliament of the Federation BiH and other parliaments who are addressing the rights of LGBTI persons publicly.
Social-democratic Party (SDP BiH) has developed a Policy for Equality of LGBT Persons in 2015, which should be adopted by the Party Presidency in 2016.
According to SOC media reporting in BiH has shown insufficient progress, with some improvement in the increase of number of articles which try to depict LGBTI people and topics neutrally.
XVI. LGBTI rights movement
Short history of movement
The country’s new status within the international community – as a new member of the Council of Europe and its developing relationship with the European Union – has contributed to a new climate of courage in which the LGBT population felt the freedom to come out to friends and family and to become involved in activism. In 2001 a small group of people started organising around gay issues.
Organization Q was the first LGBTI organization to register in the country. It was founded in September 2002 and registered formally in February 2004. The organisation was very active and visible until 2010. Organisation Logos was initially registered in 2005 under the name Initiative for Visibility of Queer Muslims but re-registered in 2006 under the name Logos. Organisation Equilibrium was registered in mid-2009 on the level of Republika Srpska and was the first organization to work out of Banja Luka. Logos and Equilibrium never got visibility and closed after two years. Sarajevo Open Centre has been working on LGBTI rights since June 2010. Organization Okvir was registered in 2011.
According to reports from CSO in BiH, despite the lack of support from state authorities or lack of strategies for development of civil society, LGBTI activism in the country is growing. In addition to established organizations such as Sarajevo Open Centre, Foundation CURE and Association Okvir, BUKA was registered in 2013, LibertaMo Association in 2015 in Mostar and Tuzla Open Centre at the beginning of 2016.
Organizations present and active in the country
Sarajevski otvoreni centar (Sarajevo Open Center – SOC) is an independent feminist civil society organization that strives to empower lesbian, gay, bisexual, trans* and intersex (LGBTI) people and women through community empowerment and activist movement building. SOC also promotes the human rights of LGBTI people and women publically and advocates on national, European and international level for improved legislation and policies in Bosnia and Herzegovina. By working on European integration issues, SOC is improving human rights in general and encouraging further the development of civil society.
Fondacija CURE (CURE Foundation) is a feminist-activist organization which promotes gender and sex equality and works for positive social changes through educational, cultural and research programs.
LibertaMo is an association that promotes the strengthening of the rights of LGBT people , and women’s rights through feminist theory and practice.
Udruženje Okvir is committed to the promotion and protection of culture, identity and human rights of LGBTIQA persons.
Banjalučko Udruženje Kvir Aktivista – Banja Luka Association of Queer Activists (B.U.K.A) is an independent, multidisciplinary, non-biased, and non-profit organization committed to promoting full respect of human rights of LGBTIQA persons, decreasing the level of discrimination based on sexual orientation and/or gender identity and fighting against homophobia and transphobia in Bosnia and Herzegovina through its primary missions.
Tuzlanski otvoreni centar (Tuzla Open Center – TOC) – Founded on 25 February 2013 TOC is an independent, non-political and non-profit organization promoting active citizenship through political education and advocating for human rights of marginalized groups through equality policies.
XVII. Role of the European Union
Bosnia and Herzegovina is considered a potential candidate country to join the European Union since 2003. While the EU has welcomed the progress made by the country in the past and reiterates its unequivocal commitment to BiH’s European perspective it has recommended for substantial improvements of the legal and institutional framework for observance of human rights. Meanwhile it has called on BiH for an effective implementation of anti-discrimination legislation including a strengthened role of the Human Rights Ombudsman while it has expressed concern over hate violence, hate speech and the reported increase in threats to LGBTI persons.
In its 2016 resolution the European Parliament expressed concern that BiH is the only territory in the Western Balkans where the sanctioning of hate crime is not regulated by criminal law and has urged the inclusion of such a provision and calls for the inclusion of a hate speech provision in the criminal laws of all entities. The Parliament also expressed concerns about the insufficient mechanisms for cooperation between government and civil society organizations, called for creation and implementation of transparent and inclusive public consultation mechanisms, called for adoption of a national strategy on CSO’s, called on CSO’s and activists to significantly strengthen their capacities and structures and to engage with authorities in BiH.
XVIII. Bosnia and Herzegovina internationally
According to the ILGA Europe Rainbow Map, Bosnia and Herzegovina is ranked 29th out of 49 countries with 29% of achievement level. This map reflects the national legal and policy human rights situation of LGBTI people in Europe and does not reflect the social and cultural realities of the community in the country.
Pink Report 2016: Annual report on the state of human rights of LGBTI People in Bosnia and Herzegovina, Sarajevo Open Centre – http://soc.ba/site/wp-content/uploads/2016/04/Pink-izvjestaj_2015_za-web.pdf
Global Rights Shadow Report on the Status of Gay, Bisexual and Transgender Rights in Bosnia and Herzegovina: www.outirightinternational.org
Accessing Health: the Context and the Challenges for LGBT People in Central and Eastern Europe, Ilga Europe, 2006.