Same-sex partnerships in Montenegro - love outside the system

Whether we call them today - same-sex, homosexual, gay, or lesbian couples, they have existed ever since the inhabitants of the territory of today’s Montenegro have as well.

However, just like in other societies that share similar history and outlooks as the Montenegrin one, these couples have been facing much social rejection, hatred, violence, prejudice, and discrimination over the centuries. Of course, all of this stemmed from the lack of understanding of the concept of same-sex love and relationships, but was also influenced by the strong vice of patriarchal-religious dogmas that are deeply rooted in this region.

Art, especially Jugoslav literature, has recognized same-sex love ever since the medieval period, even though it started being obvious and accepted only at the end of the last century. Furthermore, that period in literature is worth mentioning, especially Malvina by Kovačev and Marika by Bulatović, as well as many other lesser known artists who anonymously expressed their love through written words or other forms of expression.

Today’s Montenegro, beginning with this century, started to slowly understand and accept diversity, outside of what is traditionally seen as a “minority” - religious, national, ethnical, etc. Thus, the talk about LGBT people began spreading slowly and quietly as early as 2002, at first in institutions of the system under the influence of reforms and the international community.

It will take another decade for the Montenegrin system to move beyond the deadlock and to “acknowledge” that those “LGBT” people exist in our country and then to acknowledge they face many serious problems in their everyday lives. Back then there were no direct mentions of the legal recognition and regulation of same-sex unions and relations.

The first significant step forward for the LGBTI community was the founding of the non-governmental organization LGBT Forum Progress as well as the moment the executive director Zdravko Cimbaljević came out. When these two historically significant moments happened in 2010, the Montenegrin society was shocked, and I am tempted to claim this was a snap to reality. For the first time, we had a real flesh and blood LGBT person that came out publicly and with whom some could identify, while the others (majority) could target him as the main enemy of all that is traditional and “our”.

However, there was no going back, the avalanche of change has begun and the question of what comes next was raised. In July 2013, the first Pride Parade, “SeaSide pride”, was held in Budva, Montenegro, which made way for the LGBTI community to enter the public life of Montenegro and the existence of the LGBTI movement as we know it today in Montenegro. This very movement will define the need for the recognition and regulation of same-sex unions in Montenegro.

The first attempt at adopting the Law in 2019 was unsuccessful because the majority of the National Assembly MPS voted against it. At that moment in time, we were in at least our fifth year of an active process of advocating for the adoption of this Law, guided by the experiences from our neighbours from Croatia and Slovenia and the existing practice from the rest of the European Union. However, the declarative political will was not essential, therefore it failed to win support in the Montenegrin Parliament.

One year of an active and committed fight lead us to the adoption of the Law on the Lifetime Same-Sex Partnership which was adopted by the Montenegrin Parliament on the 31st of July, 2020. It represents the last step in the administrative and legal fight of the LGBTI movement and the first step in the new fight for full equality. The adoption of this Law was accompanied by the conservative and patriarchal structures - religious communities, extreme political trends, and individual citizens' associations.

Still, the Law was adopted, closing the process that lasted for years. Now, it is up to the Government and the National Assembly of Montenegro to adopt the bylaws and harmonize the legislature, so that the Law on the Lifetime Same-Sex Partnership could come into force on the 15th of July 2021. However, everything that happened beginning with the 30th of August 2020, i.e., all historical changes in the Montenegrin society, as well as social and political processes that followed, resulted in not being even close to the necessary legal harmonization which is necessary for it to come into force.

Simply put, the new Government and the parliamentary majority did not deem this question a priority, at least not until now, and hence it was not on their agenda. We have to understand that it was not even expected to have same-sex partnerships on the agenda right away, given so many urgent problems when it comes to corruption, organized crime, budget depletion, etc. At the meeting with Dr. Vladimir Leposavić, the Minister of Justice, Human and Minority Rights, and the LGBTI civil society organizations, we were reassured that this Law will find its place among the priorities of that Ministry and the Government very soon, which was sufficient for the time being.

The competent ministry is actively working at the moment on having many necessary steps taken quickly so that the implementation of the Law on the Lifetime Same-Sex Partnership could be ensured by the end of 2021, which we are pleased with at the moment and we find it to be a realistic and an objective deadline for its implementation. Everything beyond the deadline would be an unjustified delay and prolongation, which we could not tolerate.

As I have already said, the Law was not without “controversies”. In addition to the strong condemnation and opposition of a part of the general public, the LGBTI civil society organizations themselves have received numerous criticisms of the content of the final version of the Law, which was submitted to the members of the Parliament for consideration. That is why LGBT Forum Progress and LGBTIQ Social Center were pointing to the shortcomings of the Law and asked the competent ministry (the Ministry for Human and Minority Rights at the time) to rectify them. Even though these organizations participated actively in the Working Group that created the draft of the Law, our suggestions and proposals were not accepted.

From the very beginning of the process, it was clear that the competent Ministry had a clear goal and idea on what the Law will look like, and that the civil society organizations represent only the “cosmetic” addition to the Working Group so that the Group could have great legitimacy before critics and international partners. In particular, I would like to point out some of the remarks and suggestions we had on this Law, which were not taken into account.

The fact is that life partners, according to the adopted version of the Law, have a much smaller scope of rights compared to spouses. I can freely say that the scope of legal equality is about fifty percent lesser, which greatly makes the idea and concept of equality of all citizens of this country meaningless, as we have been repeatedly pointing out.

Some of the key questions that remain the subject of public scrutiny should be specifically referred to. For example, same-sex partners cannot adopt children, they cannot become foster parents, and have little rights when it comes to children which I believe to be extremely harmful. Essentially, this Law does not recognize same-sex partners as a union that is capable of forming a family, but only as a “union of two persons of the same sex” which is dehumanizing, no matter whether we want to enter this form of formal partnership or not.

We have already commented that this kind of formulation, ideologically and terminologically, can be seen as discriminatory and opposite to what is the essence of family and family relations. For example, the partner of the person who has a child, that is, the person recognized as a parent by the Constitution, is at best a nanny or an aunt helping to raise children.

The very act of entering a life partnership, under the auspices of the Law targeting exclusively same-sex couples, is an act of public and institutional outing, both before all institutions of the system and before all private legal entities with which life partners potentially come into contact. We cannot forget that an assumption that someone is a LGBTI person is enough for causing serious descrimination and violence, which can be confirmed by every LGBTI person in Montenegro. So, you can imagine the amount of discrimination and violence that same-sex couples will be facing from the moment it becomes known that they have entered a same-sex union and that they are a part of the LGBTI community.

In a society with a high degree of homophobia (over 80 percent according to the latest research)^[1], a Law like this will lead to an opposite effect to the one originally intended, which is equality before the law and protection of same-sex couples. It is clear that in the current conditions in Montenegro, LGBTI people will be discouraged and justifiably concerned for their safety in case they decide to enter a life partnership and take on the risk of public and institutional outing.

The idea behind this Law was made completely meaningless and subverted so it hardly has any practical need and worth for all those same-sex couples who live and work in Montenegro. Of course, the Law, i.e., its provisions, is not entirely negative for those it is supposed to serve. Still, the fact that a document like this exists is much better than a legal vacuum and uncertainty that existed before. This is indeed the first step towards legal, marital and constitutional equality of all couples in Montenegro because love is the same for everyone and cannot be underestimated like this.

I am glad that there are provisions defining some elementary, everyday life matters, such as mutual care, health and social protection, inheritance, and other matters, but that does not annul the facts I have already mentioned, and it also does not annul the fact that these rights are not available for those couples who do not wish to “register” their unions, which makes this Law additionally discriminatory.

Since the Law on lifetime partnership of same-sex couples has not entered into force yet, we can only speculate how its implementation will go in practice. However, having in mind the seriousness of everything pointed out earlier in this article, some of those speculations will probably come true.

Thanks to the communication with the competent ministry, now the Ministry of Justice, Human and Minority Rights, we have acquired information that there will most likely be a delay in the implementation of this Law and that it will not begin on the planned date which is the 15th of July 2021. However, the Ministry and civil society organizations are hopeful that this deadline will be the end of this year, which is acceptable so far having in mind the new political context in Montenegro.