Author: Edina Sprečaković
The past year has seen numerous developments in the sphere of the protection of human rights in Bosnia and Herzegovina, mostly in that state institutions haven´t began making much-needed changes to the existing legal framework and applying the framework appropriately. The implementation of international agreements to which BiH is a signatory is nonexistent.
The lack of proactive measures that the state takes to protect human rights is evident when it comes to marginalized groups in society, especially those who do not fit into heteronormative frameworks; however, so is the willingness to progress. Society in Bosnia and Herzegovina is characterized by a high degree of homophobia and transphobia as a result of ignorance, lack of information, and the widely-held opinion that LGBT (lesbian, gay, bisexual and transgender) people come from the West. This public attitude leads to daily problems for LGBT people, and often those problems involve discrimination and violence on the basis of their sexual orientation or gender identity. Their position is characterized by an absence of legal regulation and social awareness of their specific needs and ways they could be met.
Transgender people are one of most invisible and most vulnerable minority groups within BiH and also within the LGBT community itself. This invisibility is due to the fact that transgender gender identity expression is often considered unusual because it differs from the traditional binary classification of male and female. In Bosnia and Herzegovina, social awareness of the distinction between sex and gender and the individual and social constructs that form these concepts has not yet developed. Unfortunately, there is not a widespread and socially accepted definition of “transgender” that would aid institutions in their work and contribute to the sensitization of the general public to the existence of transgender persons and the problems they face. The hostility they face is the result of beliefs that biological man and woman are the only two sexes (and therefore genders). This leads to non-recognition of transgender people as individuals and as equal members of society. This also leads to exclusion from social groups, which pushes transgender people further into isolation, the sphere of illegal labor (prostitution, among others), suicide, and a cycle of violence that is almost never mentioned in public.
Transgender people and transexual people, in particular, are observed daily only through the lens of their gender identity and gender expression. By leaving the heteronormative social framework, which is viewed as something absolutely unacceptable, transgender people face many problems. They become exposed to physical (which can escalate to murder) and psychological violence, misunderstanding, problems during their education, they are often fired from their jobs and/or unable to find employment, are exposed to ridicule, have inadequate health care (mostly due to unprofessional behavior of health workers), suffer from depression, are suicidal and face a number of other problems. This directly threatens their basic existence and affects them in that their sex / gender is not only conditioned by their own feelings and desires, but also the fear of their environment’s reaction.
Even when compared only to the countries surrounding Bosnia and Herzegovina, it is impossible to avoid the fact that we are far behind in the protection of human rights of transgender people, and particularly of transexual people.
Serbia enacted amendments to their Health Insurance Act adopted on 28th July 2011 that came into force on 1 January 2012. They include mandatory 65% coverage for sex reassignment for medical reasons. The research of Svetlana Vujović (an endocrinologist and member of the team of the National Expert Commission for the Treatment of Transgender Disorders) notes that in Serbia during the period of 1987 – 2006, 147 people went through the process of sex reassignment.
Trans* persons and pop culture
Vjeran Miladinović Merlinka (14 October 1958 – 22 March 2003) was the first person who publicly identified as a transvestite in former Yugoslavia – in Belgrade – and starred in films directed by Želimir Žilnik. He was known for his specific style – long blonde hair, heavy makeup, colorful clothing patterns, short mini skirts, high heels and the saying “sweet sister” that he used with everyone. Director Želimir Žilnik was fascinated by his talent, and Merlinka starred in two of Žilnik’s films – Belgrade, Good Morning and Beautiful Woman Passing Through Town in 1986. Merlinka got the leading role in a film called Marble Ass in 1995. She wrote the autobiographic novel Tereza’s Son in 2001.
She lived off of providing sexual services to men. She was murdered in March 2003, when she was 45. The news of the murder was all over the local daily newspapers, and soon the suspects were arrested and the media covered the trial. Just before she was murdered, Merlinka said that she had retired from work and found the love of her life. Faik Ramadani was charged for murder, and Bejtul Raćipi, a minor at the time, was accused of helping Ramadani after the murder. Both were released for lack of evidence in May 2004. So far no one has been found guilty of the murder. When she was given the opportunity, Merlinka spoke openly to the media and said that being a transvestite often exposed her to physical violence.
The International Queer Film Festival Merlinka (http://merlinka.com/) was organized for the first time in December 2009 in the Youth Center in Belgrade in order to promote films dealing with gay, lesbian and transsexual themes that rarely reach a local film audience. It was named after Vjeran Miladinović Merlinka. Želimir Žilnik’s Marble Ass, starring Merlinka, opened the first festival. The festival aims to promote the rights of LGBT people and reduce homophobia. This year, Sarajevo hosted the Merlinka Festival for the second time, from January 31 to February 2 2014, in Art Cinema Kriterion. Three days of the festival were supposed to feature 30 short and feature films. On the second day of the Festival, a discussion on transexuality in transition was organized with guests from Croatia and Serbia. The goal of the discussion was to question transexuality from a wider social and ideological context of countries in the region, from socialism to capitalism and everything else in between, and to show how and whether political processes are connected with legal and everyday life of trans people. Unfortunately, the discussion was violently ended even before it started. After the introduction, 14 masked assailants attacked the participants and guests, and two people sustained light injuries. All screenings planned for that day, as well as continuing the discussion, were canceleed, but the festival continued the next day with the support of many citizens of Sarajevo.
Trans* people are faced with many problems in all parts of the world, not only in BiH society. Since they diverge from the traditional binary division of male and female – especially in a patriarchal environment – they provoke great resistance and prejudices. They are exposed to violence, isolation, misunderstanding, rejection and discrimination in almost every sphere of their lives. Lack of understanding of problems they face and the lack of will to learn about the other and the different is a growing obstacle with each passing day in achieving any change for the better, both in society and the institutions that should be dealing with ensuring basic human rights. The absence of appropriate legal solutions and the inconsistency of existing solutions and chaotic practices prevents the realization of the fundamental rights of trans* people. Legislation should ensure the equality of all citizens and the realization of all human rights of every individual. Decent human life should not be restricted by partial or nonexistent legislation, their narrow interpretations and medical preconditions. Changes are not just necessary in our legal framework that applies to protection of human rights. Lack of unity and the passivity that controls BiH society, even when it comes to something that directly affects their own well-being and quality of life, and the opinion that what affects the other and the different is isolated to them is one of the main problems in achieving any positive change in all spheres of society. Attempts to change political structures and legislation must be accompanied by attempts to address these deeply-ingrained attitudes in order to achieve progress.
Legal Framework
In December 2013, a draft law on gender identity aimed at protecting and improving the position of transgender people was presented. It was drafted in accordance with the recommendations of international organizations, the Jogjakarta Principle of the United Nations, as well as the recommendations of the Commissioner for Human Rights of the Council of Europe. All of these documents apply to Bosnia and Herzegovina, yet not even the most basic BiH legislation has been harmonized with them. Our government representatives have not gone so far as to recognize the importance of adopting these and similar measures, although they deal with basic human rights. The draft of the law on gender identity regulates the right of gender expression and gender identity, the prohibition of discrimination based on gender identity, specific forms of discrimination based on gender identity, rights of trans* persons, and the implementation and protection of these rights, especially the rights of access to health care, the law on notification and consent, employment rights, the right to security, the right to marriage and family life, the right to protection of personal data, the right to change documents (the right to change sex data in documents, change of name, change of identification number), as well as economic and other rights. In addition, the draft law provides monitoring of the implementation of this law, the establishment of a register of persons who altered sex data in the documents, as well as other issues relating to the rights and duties of trans* persons.
Montenegro has also made remarkable progress and improvement in a relatively short time when it comes to transgender people, progress that states with a much longer democratic tradition can envy. Modifications of the Health Insurance Act for insured persons provide 80% coverage of the cost of the triadic transition process from compulsory health insurance funds. This process consists of psychotherapy, hormone treatment of estrogen or testosterone, and sex reassignment surgery, which involves changing genitals. Trans* persons are usually sent to regional medical centers, mostly in Belgrade. Montenegro took a huge step in adopting a Strategy to Improve the Quality of Life for LGBT People for the period of 2013 – 2018. This sends a strong message of unity and shows commitment to work on improving the status and security, protection of rights, and higher visibility of LGBT people.
In Bosnia and Herzegovina, there is no appropriate legislation dealing with the issue of the right to sex reassignment surgery, as well as ensuring the needs and protection of transgender people. Other areas are connected to this, such as, for example, mandatory health insurance, changes in the register book and a number of other regulations stipulating steps before, during and after sex reassignment surgery. Material and formal requirements for medical sexual reassignment don’t exist, which indicates that there are no medical centers that are qualified to perform a sex change procedure. Also, legislation on health insurance in Bosnia and Herzegovina does not provide coverage of the costs of sex reassignment surgery, either in full or in part, through mandatory health insurance. The only thing that is regulated by law is the prohibition of discrimination against transgender persons, the ability to change personal identification number (JMB, as it is called in BiH), and data on sex, which is the only progress that has been achieved in Bosnia and Herzegovina. Until recently there was no possibility of changing the data in the registers. The possibility of these changes is properly regulated by law in the Federation of BiH and Republika Srpska. Unfortunately, the Law on Registers of Brčko District of BiH does not provide explicitly for the possibility of data entry on a sex change. It is the general rule that data on a sex reassignment surgery is considered as an error in the entry, if one wishes to make a change in the register. The absence of such provisions leads to different treatment in each individual case and the lack of proper recognition of the status of transgender people. It also leaves room for the development of different practices in different institutions of the Brčko District that should address sex reassignment surgery and a subsequent change of documents. This could result in one person getting permission for entry of data on sex reassignment and another being rejected, which is a paradox.
In September 2013, Sarajevo Open Centre worked intensively on advocating for changes of this law. An extensive letter was sent to all relevant institutions of the Brčko District, specifically the Department of Public Registry of Brčko District, and a large number of non-governmental organizations supported these efforts. After almost a month of waiting came a disappointing response in which the Department stated that there is no need to amend this law because it is already possible to change the data in registers so that sex change is considered a mistake in admission. Sex change cannot be conducted as a follow-up entry and there is no justification for the entry of this data as an admission mistake, especially if one takes into account that this directly disables and threatens the enjoyment and realization of human rights of transexual persons. One’s identity is not and should not be considered an error in admission. Although Sarajevo Open Centre sent a response to the Department of Public Registry, there has been no further communication. An appeal was submitted to the Institution of the Ombudsman for Bosnia and Herzegovina and they still haven’t decided on this case. It is shameful that BiH institutions are so unprepared to amend legislation in order to improve the protection of human rights of all citizens. End of February 2014, a letter arrived from the Commission for Human Rights of Brčko Distrikt which states support to this initiative and shows readiness to solve these and/or similar questions in the future. It remains to be seen how much will really be done when it comes to changes to the legislation to improve protection of human rights of all citizens, in hope that future work of Brčko Distrikt institutions will serve as an example to other institutions in BiH in terms of protection of human rights.
Trans* persons and pop culture
In the competition reality show X-Factor, which was aired on the 5th of November 2013, singer Željko Joksimović, as one of the judges, showed elementary disrespect, misunderstanding, disbelief, and disgust in direct communication with competitor Filip Janevski Fifi, who identify herself as transgender. She was discredited on the basis of her gender identity rather than on the basis of her singing. The judge also showed basic ignorance of the right to gender expression and antidiscrimination legislation. This kind of statement in the media has contributed to the already difficult position of transgender people in Serbia.
Specifically, he stated – I’m a little shocked. I’m not a conservative, but I would go against myself if I said that I liked it and I’ll tell you ‘no’, but you sing beautifully.
Public figures are responsible for what they say in public space, considering the role which mainstream media has in creating a wider social awareness about any marginalized group.
Trans* people are faced with many problems in all parts of the world, not only in BiH society. Since they diverge from the traditional binary division of male and female – especially in a patriarchal environment – they provoke great resistance and prejudices. They are exposed to violence, isolation, misunderstanding, rejection and discrimination in almost every sphere of their lives. Lack of understanding of problems they face and the lack of will to learn about the other and the different is a growing obstacle with each passing day in achieving any change for the better, both in society and the institutions that should be dealing with ensuring basic human rights. The absence of appropriate legal solutions and the inconsistency of existing solutions and chaotic practices prevents the realization of the fundamental rights of trans* people. Legislation should ensure the equality of all citizens and the realization of all human rights of every individual. Decent human life should not be restricted by partial or nonexistent legislation, their narrow interpretations and medical preconditions. Changes are not just necessary in our legal framework that applies to protection of human rights. Lack of unity and the passivity that controls BiH society, even when it comes to something that directly affects their own well-being and quality of life, and the opinion that what affects the other and the different is isolated to them is one of the main problems in achieving any positive change in all spheres of society. Attempts to change political structures and legislation must be accompanied by attempts to address these deeply-ingrained attitudes in order to achieve progress.
*This text was created in collaboration with Civil Rights Defenders