Implementation of central concepts

AuthorKrstic, Ivana
3 Implementation of central concepts
3.1 General (legal) context
3.1.1 Surveys on the definition, implementation and limits of central concepts of gender
equality law
In Serbia, there are some surveys that have been published over the last five years that
provide insights into the legal definition, implementation and limits of central concepts of
gender equality law in Serbia.
It is worth mentioning the Gender Analysis for Serbia from 2016,20 where it was
highlighted that although the GEA makes a distinction between sex and gender in Article
10, it refers only to the equality between sexes and equal opportunity policy and does not
introduce gender equality.
In another study on Equality in Practice in Serbia,21 the a uthors argue that the LGE does
not contain an overarching express prohibition on discrimination on the ground of gender.
Gender based discrimination is defined in Article 4 as:
any unjustified differentiation or unequal treatment or failure to treat (exclusion,
restriction or prioritising) aimed at hindering, jeopardising, preventing or denying
exercising or enjoyment of human rights and freedoms to a person or a group of
persons in the area of politics, economy, social, cultural, civil, family life or any other
The authors claim that this definition refers only to the purpose of conduct, rather than to
its effect, but this omission is likely the result of oversight in drafting, rather than
deliberate omission, and has not arisen in practice. When it comes to indirect
discrimination, authors elaborate on the meaning of unjustified in the definition of
discrimination which says in Article 4 that:
Unjustified distinction, exclusion, limitation and treatment or other undertaken
measures, within the meaning of this law, include in particular, if: 1) An undertaken
measure is not justified by a lawful or legitimate aim; and 2) There is no proportion
between the actions undertaken and the aim to be achieved by such actions.
Authors of the study argue that this is largely consistent with international best practice
regarding the circumstances in which indirect discrimination may be justified, but it does
not reflect international best practice with respect to the justification of direct
discrimination which may occur under exceptional circumstances and against strictly
defined criteria. Furthermore, the authors argue that harassment is only expressly
prohibited in the context of the workforce, and that it does not define denial of reasonable
accommodation, multiple discrimination, discrimination by association and discrimination
by perception.
3.1.2 Other issues
The study Equality in Practice in Serbia also refers to some problems in the implementation
of central concepts by courts. Thus, authors found that in a number of court decisions,
judges incorrectly characterised discrimination as unequal treatment without considering
whether the conduct had occurred in relation to a prohibited personal characteristic; that
sometimes judges misunderstood the relevance of protected characteristics, and in more
20 Dokmanović, M. (2016), Gender Analysis for Serbia, IPA - NEAR, available at
21 Petrušić, N., Beker, K. (2018), Equality in Practice in Serbia, Implementing Serbia's Equality Laws, Equal
Rights Trust,
complex cases, some judges do not recognise the distinction between direct and indirect
3.1.3 General overview of national acts
The main legislation that contains central anti-discrimination concepts are the LDP and the
The LPD, as a general act, defines direct and indirect discrimination, harassment,
instruction to discriminate and positive action.
The GEA does not define instruction to discriminate but defines sexual harassment. It also
provides definitions of 'sex' and 'gender'.
Finally, the Labour Law defines direct and indirect discrimination, as well as harassment
and sexual harassment.
3.1.4 Political and societal debate and pending legislative proposals
Since 2015, the adoption of a new piece of legislation with some significant changes was
expected to happen at the end of 2015, but was postponed due to some
misunderstandings of the Working group that prepared the text. The name of the law was
changed twice from the Law on Gender Equality to the Law on Sex Equality and, finally,
to the Law on Equality of Women and Men showing misunderstanding of two main
concepts: 'sex' and 'gender', as well as resistance to combating gender discrimination. The
main claim was that the Serbian constitution does not recognise gender equality, but only
'equality between women and men'.23 Due to lack of wider consensus, the Coordination
body for Gender Equality withdrew the Draft Law from the parliamentary procedure in
February 2016. It was expected that comments received from different stakeholders will
be carefully considered in order to adopt a good piece of legislation for combating gender
discrimination by the end of 2016. However, the new piece of legislation was not adopted
by the Government and published on the website of the Ministry of Labour, Employment,
Veteran's Affairs and Social Affairs before June 2018.24 Moreover, this process was not
finalised, and the law was not submitted to the National Assembly and adopted by the end
of 2019.
3.2 Sex/gender/transgender
3.2.1 Definition of ‘gender’ and ‘sex’
Article 10 of the GEA defines both terms. Therefore, while ‘sex’ relates to biological
features of a person, ‘gender’ means socially established roles, position and status of
women and men in public and private lives out of which, due to social, cultural and historic
differences, discrimination ensues on the basis of biologically belonging to a sex. These
are the only definitions of these terms in Serbian legislation. The National Strategy for
Gender Equality (2016 to 2020) also relies on these definitions and defines gender
equality' as:
equal participation of all persons regardless of their gender in all areas of social and
private life, as well as their equal status, equal opportunities for exercising their
22 Petrušić, N., Beker, K. (2018), Equality in Practice in Serbia, Implementing Serbia's Equality Laws, Equal
Rights Trust, 105.
23 Politika, Zašto je povučen zakon o ravnopravnosti žena i muškaraca? (Why was the Law on Equality of
Women and Men withdrawn?), 18 February 2016,
24 Government of the Republic of Serbia, Coordination Body for Gender Equality, the Draft Law on Gender

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