no. 07-00-367/2023-02 date: 9 October 2023.

OPINION

The opinion was issued in the procedures regarding the complaint filed by the “AA Association” against BB due to discrimination based on gender identity and regarding its publication on July 10, 2023, on the Facebook social network, which, as stated in the complaint, “denies, offends and puts transgender people in a disadvantageous position”. In his statement, BB did not dispute that he had written the text in question on the occasion of the victory of a transgender person in the Miss Netherlands pageant, but he disputed the association’s active legitimacy for filing this complaint. After that, he pointed out why he believed that his views did not violate the Law on Prohibition of Discrimination, which, in the relevant part, refers to the Constitutional guarantees of freedom of speech. In this regard, the Commissioner first stated that the provisions of Article 35, Paragraph 3 of the Law on Prohibition of Discrimination stipulate that an association or organization dealing with the protection of human rights may file a complaint on behalf of a group of persons whose rights have been violated even without the consent of the individuals who form that group if the violation refers to an unspecified number of persons of a social group connected by some personal characteristic, which is why there were no procedural obstacles for further proceedings. The content of the statement in question, which was publicly posted on the Facebook profile, was determined during the procedure. Analyzing the statement, it was determined that BB expressed views that encourage existing prejudices and stereotypes about this social group, denying their identity and belonging to a gender/sex that does not follow the sex assigned to them at birth. In the text, he placed transgenderism in the context of arbitrariness, and by setting a parallel between identification with gender and identification with animals such as a horse, he grossly violated the dignity of persons of different gender identities. Furthermore, the text is full of misinformation and intimidation and thus presents the phenomenon of transgenderism as a “madness” that is arriving in Serbia, which is the product of “propaganda of sexuality that has entered kindergartens in the West, and that laws are being written to enable children to choose to undergo surgery themselves”. BB calls medical transition, i.e., gender matching through surgery, “butchering sexual organs”, while inappropriately calling the tragically deceased transgender girl N.M. a boy with a male name, who was “butchered by a homosexual”. In this regard, using the wrong name and the wrong gender when it comes to transgender people, as in this particular case, sends a message of total non-acceptance and denial of the right and opportunity of each person to express the experience of their own identity, which does not have to be based on sex as a biological category, and the gender role traditionally attributed to them. When issuing the opinion in this case, the Commissioner had in mind the provisions of the Constitution of the Republic of Serbia, which in Article 46 guarantees freedom of opinion and expression but also stipulates that freedom of expression can be limited by law if it is necessary to protect the rights and reputation of others. Article 12, paragraph 1 of the Law on Prohibition of Discrimination prohibits harassment, humiliating treatment, and sexual and gender-based harassment that aims at or represents a violation of the dignity of a person, or a group of persons based on personal characteristics, especially if it creates an intimidating, hostile, degrading, humiliating and abusive environment. The Commissioner points out that statements that further encourage prejudice and deepen intolerance and stigma toward any vulnerable and marginalized groups of persons cannot be considered freedom of speech and can be particularly dangerous and harmful if they represent the position of a prominent political figure. Both domestic and international judicial practice speak in support of the above. In a judgment of the Appellate Court in Belgrade, the court pointed out that “the defendant, as a respected political figure, has the right to his own opinion, but also the obligation not to promote discrimination in his public appearances, as well as that providing protection to the plaintiff does not constitute censorship or a restriction of freedom of speech of the defendant or the right to his opinion and to express negative comments, but represents a ban on speech that conveys ideas that encourage discrimination, and that may have harmful consequences on democratic processes in society, as well as on the development of society as a whole”. In addition, the Commissioner points to the practice of the European Court of Human Rights, which stated in one case against Iceland, among other things, that “assaults on persons committed by insulting, mocking or slandering certain groups of the population may be sufficient to allow the authorities to favor the fight against prejudice in the context of permitted restrictions on freedom of expression even in cases where the speech does not call for an act of violence or other criminal acts”. By analyzing the individual statements and the entire context of the publication that is the subject of the procedure, it can be concluded that it is obvious that prejudices against trans people are still strong, that their position in society is extremely sensitive, and that general sensitization of society is necessary with the aim of reducing transphobia and stigma aimed at transgender people, which is primarily achieved through education and encouragement of empathy. Taking into account all of the above, the Commissioner gave the opinion that the views expressed by B.B. in a post on the Facebook social network on July 10, 2023 violated the dignity of transgender persons and encourages the creation of a hostile and degrading environment, which is in contradiction with the provisions of the article 12, paragraph 1 of the Law on Prohibition of Discrimination. BB was recommended to remove the publication that expresses attitudes about transgender people in an offensive and humiliating manner, to meet with the complainants, i.e. representatives of the civil society organization that deals with the protection of trans people in order to become more familiar with the problems and challenges trans persons face, as well as that in the future, within his activities he does not violate legal regulations on the prohibition of discrimination.

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković