Can two people of the same sex get married in Kosovo? – The never-ending question that continues to raise dust for years on end. In principle, the right to marry and a family is protected and guaranteed by contemporary constitutions as a fundamental right for all and sundry. The Constitution of Kosovo is no exception in this regard. Regardless of the fact that Kosovo has rather recently emerged from the war and gained its independence, i.e., February 17, 2008, it possesses a constitution composed of a quite modern and advanced framework concerning the protection of human rights. It explicitly or implicitly recognizes same-sex marriages. Article 37 [Right to Marriage and Family] of the Constitution envisages:
- “Based on free will, everyone enjoys the right to marry and the right to have a family as provided by law”;
- “Marriage and divorce are regulated by law and are based on the equality of spouses”;
- “Family enjoys special protection by the state in a manner provided by law”.
This provision establishes the protection over the right to marry and a family emphasizing 1) free will – meaning that marriage and family are protected as rights exclusively when established on the basis of free will, 2) everyone enjoys the right to marry and a family – meaning that there is no categorical exclusionary definition, and 3) that family enjoys special protection from the state in accordance with the law. The article in question sheds light on who is eligible to enjoy the right to marry and a family, which leads to a clear-cut conclusion that all citizens of the Republic of Kosovo, regardless of their sex and the sex of the person they intend to marry, have a legal basis that enables them to exercise this right. Protecting and respecting human rights and freedoms and non-discrimination are established as values and principles on which the constitutional order of the Republic of Kosovo is built. The constitution, in its Article 24 [Equality before the Law], foresees that 1. “All are equal before the law. Everyone enjoys the right to equal legal protection without discrimination”, and 2. “No one shall be discriminated against on grounds of race, colour, gender, language, religion, political or other opinion, national or social origin, relation to any community, property, economic and social condition, sexual orientation, birth, disability or other personal status”.
Furthermore, in the light of guaranteeing protection of citizens – including LGBTIQ+ people – of the Republic of Kosovo, The Law on Protection from Discrimination also bans discrimination based on gender or sexual orientation, as well as other personal characteristics. Upon its amendment in May 2015, the respective law is the first to ever outlaw discrimination on grounds of gender identity and to recognize transgender people with or without surgical intervention – implicitly as it does not directly expresses – as well as provide safety for the latter: “The purpose of this law is to establish a general framework for prevention and combating discrimination based on nationality, or in relation to any community, social origin, race, ethnicity, colour, birth, origin, sex, gender, gender identity, sexual orientation [...], in order to implement the principle of equal treatment”.
Given all this tremendous progress that has been recorded ever since Kosovo has been declared an independent country that essentially provides legal grounds for the protection of LGBTIQ+ people against discrimination and even enables same-sex marriages, one may wonder why no same-sex couple has yet exercised their right of getting married or why Kosovo still maintains its spot amongst the countries with the highest level of homophobia and transphobia in the Western Balkans region!?
Apart from the Constitution and the Law on Protection from Discrimination not being properly implemented in practice but solely remaining correct on paper, the Family Law overlaps and implicates the constitutional provision that allows same-sex marriages. Namely, Article 14 of the Family Law of Kosovo that regulates marriages provides that 1. “Marriage is a legally registered community of two persons of different sexes, through which they freely decide to live together with the goal of creating a family” and 2. “Men and women, without any limitation due to race, nationality or religion, have the right to marry and found a family as well as they are equal to marriage, during marriage and at its dissolution”.
However, regardless of the fact that the constitution-makers have deliberately left the modalities and procedures of creation and other aspects of the family and marriage to be determined by law, the Constitutional Court has found that legislation must be in accordance with the Constitution and its principles: 1. “Laws must be in accordance with the Constitution” and 2. “When a law restricts a constitutional right that restriction is constitutional only if it is proportionate” – i.e., denial of the right to marry cannot be proportionate as it is a fundamental right. Simply put, as it is widely apprehended, the Constitution is the supreme law – the highest law of the land – indicating that there is no space for ambiguity in terms of what act (the Constitution versus the Family Law in this respect) shall prevail.
A definite answer on whether same-sex couples can get married will certainly be acquired if a same-sex couple would challenge the law, but do the LGBTIQ+ people need to be on the public eye of an entire country by doing so only for Kosovo can eventually sort out this whole issue floating in murky waters!? LGBTIQ+ people consider going public and initiating such procedures to be dangerous as the subsequent hate speech and attempted hate crimes can be unbearable, in addition to taking up rather a very long time to be settled.
However, if this is to take place, it would not be the first time a queer person challenges the law in Kosovo. In 2018, Blert Morina, a transgender activist, challenged the law by requesting to formally change his name and sex marker, namely from F (female) to M (male) in his documents at the Office of Municipality of Gjakova (his hometown). Blert Morina’s application referred to the Administrative Instruction on the Conditions and Procedures for Personal Name Change and Correction, particularly the provision that states: “Personal name hinders a person's integration into society”. The official decision to the application, quoting the recommendation of the Civil Registration Agency’s Commission, stated that: “The Commission decided that the reasoning provided by the applicant who filed the request does not stand […] as ‘Blerta’ does not hinder the person’s integration into society”. Following the denial of the request, which was highly influenced by the negative recommendation of the Commission of the Civil Registration Agency – a body within the Ministry of Internal Affairs tasked with making recommendations related to requests – Blert appealed the decision directly to the Agency only for it to reject the request once again under the pretext that it is “ungrounded”. Blert’s fight was not over just yet. Apart from lodging a complaint against the decision of the Civil Registration Agency to the Constitutional Court for a constitutional review, he took the case to the Basic Court of Prishtina. Upon two hearing sessions – following a year or so – the Basic Court of Prishtina gave green light to Blert to formally change his name and sex marker, making this a turning point for transgender rights.
While this success story, clubbing together with the incessant LGBTIQ+ NGOs' work in Kosovo, might have influenced the establishment of the Working Group for Drafting the Concept Document on Civil Status that will work towards regulating the civil status procedures for transgender and non-binary people, the same LGBTIQ+ NGOs have chosen to address the issue of same-sex marriages through the Draft Civil Code.
Codification of civil law was one of the fundamental priorities of the Ministry of Justice. Therefore, the State Commission for drafting the Civil Code was established in 2015, in cooperation with the EU project “Support to the Civil Code property rights” that commenced in July 2014 and lasted for 24 months. During the 24 working months of this project, in cooperation with the State Commission, which was led by the former Minister of Justice, a draft of the Civil Code of the Republic of Kosovo was drafted with the intention to serve as the initial draft in the process of consultations with relevant stakeholders. In 2016, the Government authorized the Ministry of Justice to proceed with the finalization of the Civil Code. Pursuant to the decision of the Government, the Ministry of Justice established the Working Group for leading and coordinating the process of drafting and finalizing the Civil Code.
Despite that the Working Group was tasked to hold consultations with relevant stakeholders in the course of drafting and finalizing the Civil Code, the civil society organisations were not included. As the concept behind the Civil Code was to uniform the legislation and dodge possible overlapping between laws or unconstitutional laws, the LGBTIQ+ NGOs seized this opportunity to address same-sex marriages as the Draft Civil Code defined marriage as “a union registered between two spouses of different genders, through which they freely decide to live together as husband and wife”. The marriage definition did not differ in content from the definition of marriage in the Family Law that is currently in place. The instance the Working Group began to hold public discussions on what they had worked on, the LGBTIQ+ NGOs, namely CEL Kosovo and CSGD, compiled recommendations and requested to become part of the Working Group. While the request to become part of the Working Group was dismissed, CEL Kosovo and CSGD were summoned to a meeting to introduce the recommendations. Recommendations included: 1) removal of any reference to “man and woman” and “different genders/sexes” in the article concerning marriage; 2) replacement of “spouses of different genders/sexes” and “husband and wife” with “two persons” in the article concerning marriage; and 3) removal of the provision to regulate other civil unions by special law. CEL Kosovo and CSGD anticipated additional recommendations in case the Working Group does not take into account the recommendations on marriage. Alternatively, they proposed recognizing civil partnership as a form of legal recognition for same-sex couples, providing legal provisions to be added in order to avoid any possible loopholes that might hinder recognition of same-sex couples. The LGBTIQ+ NGOs observed a form of resistance from the Working Group and in an effort to exclude same-sex marriages or same-sex partnerships from the Draft Civil Code, the latter proposed drafting a special law to regulate other forms of civil union. The LGBTIQ+ NGOs certainly opposed this proposal. Besides that drafting a new law takes considerable time, additional complexities could arise throughout the reading and voting process in the Parliament for the law to be passed. In such a case, even unexpected developments could take place – just as it happened with the Draft Civil Code. The Draft Civil Code has never been subjected to the first reading as the government dissolved two times since the Civil Code began to be drafted. In an effort to pass the Draft Civil Code in October 2020, it was reviewed in the Kosovo Assembly but was not voted on because there was not a quorum. However, when a new government is elected, any half-done process starts from scratch. Currently, with the freshly elected government, the Draft Civil Code is being reviewed for probable changes due to the numerous reactions from civil society organisations as a result of dissatisfaction in content. The LGBTIQ+ NGOs are proceeding with their work in lobbying for the Draft Civil Code to be inclusive. Not long ago, CEL Kosovo arranged an official meeting with the Minister of Justice to discuss the situation of LGBTIQ+ people in Kosovo, particularly now considering that the pandemic has worsened their situation and position in society. As the bulk of the meeting was about the importance for the Draft Civil Code to include same-sex marriages, the Minister of Justice pledged her readiness and provision of support towards the demands of LGBTIQ+ people during the approval process of the Draft Civil Code. Into the bargain, the recommendations, which will substantially be of the same content, are being updated by both LGBTIQ+ NGOs jointly with legal professionals and will be submitted forthwith. The reading of the Draft Civil Code is anticipated to take place soon. However, in the scenario that the Draft Civil Code is passes but fails to include sex-same marriages or partnerships, LGBTIQ+ NGOs have declared to take it to the Constitutional Court for constitutional review.
Advancing forward the matter, the theme of this year's Pride Parade will be same-sex marriages, which will come about by the end of June. It is the fifth year that the Pride Week is organised, with the Pride Parade as a closing event. The Pride Week, throughout these five years, has tackled various topics that were deemed necessary to be vocal. The Pride Parade 2020 was organised under the slogan "I DO". Similarly to this year, LGBTIQ+ people demanded equal rights and opportunities in terms of marriage. Since this matter has not yet been resolved, and with the aim of capturing the momentum before the Draft Civil Code is approved, it has been decided to be addressed this year again as well. Hitherto, fortunately, the Pride Parades have never been accompanied by any incidents or counter-movements. Although no incidents occurred, hate speech and threats have always been present on every post on social media concerning the Pride Parade. Even activists have individually received death threats, but which have never been acted upon. Nevertheless, the LGBTIQ+ people have been attacked before. When Kosovo 2.0, an independent media organisation, launched a sexual education magazine named “Kosovo 2.0 talks sex”, which included LGBTIQ+ communities, it organised an event as well. The event was attacked by groups of hooligans and the Muslim community. They destroyed everything inside the premise and physically assaulted the LGBTIQ+ people, since for them being a member of these communities is sinful. A trigger to this attack was also the misunderstanding that the LGBTIQ+ people will perform sexual intercourse in public. This speaks a great deal about the mind-set of Kosovar society – if an event is to be organised with LGBTIQ+ people, to them, it translated as sexual intercourse will surely take place. In their eyes, LGBTIQ+ people are reduced to sex only. Kosovar society is undoubtedly one of the most homophobic countries in the Western Balkans. In a study carried out by the World Bank in 2018, Kosovo was ranked amongst the least accepting countries, whereas in a study carried out by NDI and CRD In 2015, 81% of surveyed people believe that LGBTIQ+ people belong to the most discriminated group of people. The large percentage of homophobia in Kosovo is influenced by numerous factors. To begin with, the tradition, which in essence is patriarchal and conservative, has an enormous impact as Kosovars tend to preserve traditional values that do not correspond at all to the modern world. The tradition is profoundly shaped by the Kanun or Doke, which is a set of traditional Albanian laws that initially was oral and was published in writing only in the 20th century. The Kanun in its core is misogynist and homophobic. Even though it is no longer practiced, there is still a thread of influence as some customs are ingrained in the mentality of Kosovar society. Secondly, Islam is the predominant faith in Kosovo and Muslim preachers often promote homophobia and transphobia claiming that being gay is sinful. Thirdly, among many other factors, what influences a homophobic mentality from an early age are the outdated school curricula that still treat any sexual orientation other than heterosexual as a mental disorder or hormonal deviation.
Despite everything, taking into account the successful journey of the queer movement so far, the civil society organisations and LGBTIQ+ youth remain hopeful for a more empathic and accepting society and that institutional changes for the benefit of the LGBTIQ+ communities will smoothly occur, especially now that a new wave of elevated activism has arose.