Implementation of central concepts

• Author: Krstic, Ivana
• Pages: 10-25

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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

area.’

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

http://europa.rs/files/Gender_Equality/Gender-Analysis-Serbia-dec-2016.pdf.

21 Petrušić, N., Beker, K. (2018), Equality in Practice in Serbia, Implementing Serbia's Equality Laws, Equal

Rights Trust, https://www.equalrightstrust.org/ertdocumentbank/Serbia%20report_EN.pdf.

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complex cases, some judges do not recognise the distinction between direct and indirect

discrimination.22

3.1.3 General overview of national acts

The main legislation that contains central anti-discrimination concepts are the LDP and the

GEA.

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, http://www.politika.rs/sr/clanak/349327/Drustvo/Zasto-

je-povucen-zakon-o-ravnopravnosti-zena-i-muskaraca.

24 Government of the Republic of Serbia, Coordination Body for Gender Equality, the Draft Law on Gender

Equality, https://www.rodnaravnopravnost.gov.rs/sr/dokumenti/predlozi-i-nacrti/nacrt-zakona-o-rodnoj-

ravnopravnosti.