The initiative was launched due to incorrect information and prejudice

Photo: Lana Nikolić

In its 11th session held on 30 October 2024, the National Assembly of Republika Srpska (RS) adopted the Law on Amendments to the Criminal Code of Republika Srpska, which replaces the words "gender identity" with the words "other personal characteristics". The words "gender identity" are deleted from all three articles of the Criminal Code contained in this bill, namely articles 123, 139 and 359.

This amendment was met with much criticism from the public, especially human rights defenders. Many recognised in these changes wider efforts to limit the protection of the rights and freedoms of LGBTIQ+ persons, especially in the territory of Republika Srpska. The initiative also gave rise to an international response. In their open letter, two United Nations experts - the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity and the Special Rapporteur on the situation of human rights defenders - expressed their concern “that the amendments could also reduce the scope of application of article 139(2), which specifically refers to individuals and organisations advocating for equality. This could potentially impact human rights defenders and civil society organisations that are engaged in the promotion and protection of the rights and equality of persons of diverse gender identities, as well as reduce protection grounds in case they are targeted in retaliation for their legitimate human rights and advocacy work”.

Why is the Criminal Code being changed?

The law itself does not explain the reasons for this amendment, except to state that the provisions related to gender identity are hereby corrected and that additional harmonisation with the provisions of the Constitution of Republika Srpska is carried out.

According to the available information, the initiative to amend the Criminal Code came from SNSD (The Alliance of Independent Social Democrats) MPs and coalition partners.  According to Srđan Mazalica, a member of the party in the National Assembly, it was the result of discussions with associations that fight for the protection of the family.

A discussion of the members of the National Assembly that preceded the adoption of this law demonstrated that there is clearly a misunderstanding of the purpose of the provisions of the Criminal Code of the RS leading to mentions of “undesirable European values”, “gender changes and, consequently, ‘’manipulations on electoral lists” - attitudes that this is the result of psychological issues of people and the like. Finally, in the context of this conclusion, it is important to mention other decisions of the Government, such as the withdrawal of the proposed Law on Protection from Domestic Violence and Violence against Women and the initiative of the Citizens' Association “Roditelji ZA prava djece” (Parents FOR Children's Rights) in Bijeljina, based on which the RS Constitutional Court found that the term/word "Gender" in the Decision on the establishment of the Gender Centre of Republika Srpska is not in accordance with the Constitution of Republika Srpska.

From all of the above, it can be concluded that there is no legal argument to support the need to remove the concepts of sex, gender identity and gender in the regulations, but that the solutions are largely based on a misunderstanding of the scope of the law. It is still worrisome that the RS Government and later the RS National Assembly succumbed to the influence of these initiatives and, without any real foundation, decided to accept these initiatives, primarily undermining the authority of the democratic institutions of RS, but also contributing to the issue of legal uncertainty.

The reasons for this conclusion can be derived from the discussion of several key arguments that were used before, during and after the discussions on these topics, namely: the phrase “gender identity” does not have a foundation in the RS Constitution, the goal of introducing the concept of gender identity into the Criminal Code is to collapse the institution of the family and enable various manipulations, and finally, the amendments to the Criminal Code reduced the protection against crimes motivated by hatred.

Gender identity does not have a foundation in the RS Constitution

The fact is that gender identity is not explicitly stated as a discrimination basis in Article 10 of the Constitution and that the list of prohibited grounds is not final, which is confirmed by the use of the word "other personal characteristics ". In the wording of Article 10, standards are used that are present internationally as well as in Bosnia and Herzegovina and as a rule consist of several explicitly stated prohibited grounds and the wording that extends the prohibition of discrimination to "other status" (Article 14 of the European Convention on Human Rights, Article II. 4 of the Constitution of Bosnia and Herzegovina, Article 26 of the International Covenant on Civil and Political Rights).

Contrary to the explanation of the amendments that this is an additional harmonisation with the RS Constitution (which points to the position that "gender identity" does not have a foundation in the RS Constitution), the proponent of the law is debunked by the preamble of the RS Constitution which confirms that "the constitutional arrangement of Republika Srpska is based on guaranteeing and protecting human freedoms and rights as well as the rights of minority groups in accordance with international standards, prohibition of discrimination". International bodies have confirmed in their interpretive positions that "gender identity" is one of the bases of discrimination as well as one of the motives for hate crimes. Of particular importance for the legal system of Bosnia and Herzegovina, the European Court of Human Rights in its decisions, including P.V. v. Spain of November 30, 2010, and Identoba and others v. Georgia of May 12, 2015, confirmed that both transsexuality and gender identity fall within the scope of Article 14 of the Convention.

Therefore, it is indisputable that including the basis of "gender identity" in the regulations in RS does not contradict the RS Constitution, that is, it is one of the bases to which the prohibition of discrimination applies and, consequently, the protection against crimes motivated by hatred. Gender identity is already part of the legal system of Bosnia and Herzegovina and the most relevant regulation that the legislator should have kept in mind when considering this initiative is the Law on Prohibition of Discrimination, which explicitly states "gender identity", as does the Criminal Code of Bosnia and Herzegovina, the Criminal Code of the FBIH and others. Most countries in Europe also specify gender identity in criminal laws in response to the need to prosecute perpetrators of hate crimes.

What was also neglected  was the fact that RS Government gave its consent and the Council of Ministers of Bosnia and Herzegovina adopt the Action Plan on the Rights of Lesbian, Homosexual, Bisexual, Transgender, Intersexual and Queer (LGBTIQ) persons, which was supposed to represent the framework for considering this initiative..

The introduction of the concept of gender identity does not collapse the institution of the family and does not allow for manipulations

Stating different grounds for protection against discrimination and motives for criminal offences in the regulations of a state is aimed at determining the possibility of protection against discrimination and protection of victims of crimes committed out of hatred. The RS Criminal Code established that gender identity can be one of the motives for committing e.g. a qualified form of grievous bodily harm (committed out of hatred). Therefore, its only goal  is to protect the victims of this and other offences.

Any other interpretation is incorrect and constitutes false information. There is absolutely no evidence that protection against discrimination or hate crimes is causally related to other social processes, including the institution of the family, which is being referenced in connection to the amendments to the Criminal Code.

We should not forget that incorrect and similar interpretations were recorded in other European countries (e.g. the "In the Name of the Family" Initiative in Croatia). These initiatives are motivated by a misinterpretation of the purpose of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) and its Article 3, which explains that violence against women and domestic violence is gender-based and defines the concept of gender. The connection between gender and social roles and violence against women and domestic violence has been repeatedly examined and confirmed by numerous analyses, and this connection is stated in the Istanbul Convention for a reason.

Amendments to the Criminal Code do not reduce protection against crimes motivated by hate

Regardless of the lack of argumentation of the initiative, the proposed amendments to the RS Criminal Code with the use of the term "other characteristics" de jure expand protection against crimes committed out of hatred, including those committed on the grounds of gender identity. In this respect, the statements from the RS Government and National Assembly that the scope of application of the RS Criminal Code is hereby extended to all persons who may be victims of a hate crime due to their personal identity are correct. These can be, in addition to those explicitly stated, grounds such as political or other beliefs, property status, membership in a trade union or other association, education, social position and gender characteristics that are contained in the Law on Prohibition of Discrimination and which could not be previously recognised as a motive for a crime committed out of hatred.

Actual consequence: decreased trust in democratic institutions and legal certainty and stigmatisation of LGBTIQ+ persons

In conclusion, the purpose of amendments to the RS Criminal Code is set with a reason. This short analysis leads to the conclusion that the initiative was launched based on unfounded positions that seem to be based on incorrect information and prejudices towards the concept of gender and gender identity without being grounded in the constitution and law. In this situation, the RS Government and National Assembly showed their willingness to justify this initiative by basing their arguments on the RS Constitution, which turned out to be incorrect. Why this initiative has such an influence on the Government's decisions is not entirely clear. Nevertheless, the decision of the RS Government to propose a de jure expansion of the grounds that also include gender identity is partly encouraging.

The real negative consequences of the adoption of this initiative are an additional decrease in trust in the work of democratic institutions, a decrease in legal certainty and, very likely, an additional increase in negative attitudes towards LGBTIQ+ people. It is quite likely that these findings will be noted in the reports on the state of human rights and freedoms in BIH, including the EU report on the progress of BIH.