No 07-00-703/2019-02 date: 05.03.2020.

OPINION

The opinion was issued in the procedure regarding the complaint filed by AA from BB against the Office for the Sale of Life Insurance of the company “VV” a.d.o. (hereinafter: the company VV), due to discrimination based on gender identity and health status. In the complaint, the applicant stated, among other things, that on November 14, 2019, he went to the company VV in order to conclude a contract on life insurance. He further stated that he told the employee who filled in the insurance policy that he had been “diagnosed with F 64.9” and that he was under therapy with the drug “Zalasta”, and that the employee had noted this information in the policy and told him that he would receive a written answer. According to further allegations from the complaint, on November 26, 2019, the company VV informed the complainant “that there is no possibility of concluding a life insurance contract with him, because the contract deviates from the insurance conditions.” In the complaint, the applicant pointed out that he had already concluded a life insurance contract with VV, in the period from 2006 to 2011, when he had “not yet been diagnosed”, which is why he considers that in this specific case he was discriminated against on the basis of his health and gender identity. In their statement regarding the complaint, VV asserted, inter alia, that the risk assessment service of the Office for the Sale of Life Insurance, upon inspecting the medical documentation submitted by the complainant, and based on the provision of Article 9 of the Special Conditions for Increased Risk Insurance, concluded that the diagnosis submitted in the documentation in question precludes the possibility of concluding a life insurance contract, “because the contractor/insured person deviates from the prescribed insurance conditions”. Namely, the statement clarifies that the risk assessment is performed by an authorized person according to the prescribed General Conditions for Life Insurance and Special Conditions for Supplementary Insurance of Persons from Accident with Life Insurance, as well as based on the list of ilnesses defining the degree of anormal risk. Furthermore, it is stated that Article 4, paragraph 7 of the General Conditions for Life Insurance stipulates that the insurer has the right to reject the application or propose to the applicant the conclusion of an insurance contract under amended conditions, and that VV, in this case, did not discriminate, but rather acted according to the legally adopted and prescribed life insurance conditions. During the proceedings, it was established that the provision of Article 9 of the Special Conditions for Increased Risk Insurance (anormal risk) (hereinafter: Special Conditions) prescribes that “mentally ill persons are in any case excluded from insurance”, as well as that Special Conditions contain a list of mental illnesses, diseases of the central and peripheral nervous system, which, in accordance with the stated provision, represent the basis for exclusion from insurance. Also, it was determined that the report of the medical specialist of the Clinical Center of Serbia states that the complainant “suffers from F29 and secondary diagnosis F64.9”, as well as that the said specialist’s report was attached to the application for life insurance. Inspecting the code list of diagnoses of the Republic Health Insurance Fund, it was determined that the code F29 indicates “inorganic mental illness, unmarked”, while the code F64.9 indicates “gender identity disorder, unmarked”. Bearing in mind all of the above, while refraining from assessment of the justification of the provision of Article 9 of the Special Conditions, it was determined, after the conducted proceedings and presented evidence, that neither the primary nor the secondary “diagnosis” of the complainant are listed in the list of mental illnesses that are considered, under Special conditions, to be the basis for exclusion from life insurance, so it is unclear on the basis of which criteria the complainant was classified in the group of mentally ill persons, who are excluded from insurance. The Commissioner especially points out that the provision of Article 6 of the Law on Prohibition of Discrimination prohibits direct discrimination on the basis of any personal characteristics prescribed by Article 2 of the same Law, among which gender identity is explicitly stated. Also, the Commissioner recalls that, at the World Health Assembly held in Geneva in May 2019, transgenderism was removed from the list of mental illnesses, and that according to the new International Classification of Diseases (ICD-11), transgenderism is perceived as a condition instead of an illness, which is why in the latest edition of this document, the part related to gender identity was moved from the chapter on “mental disorders” to the chapter on sexual health. The Commissioner also takes this opportunity to point out that transgender people often express “gender atypical” behavior from their earliest childhood, which exposes them to abuse, rejection and isolation, and that they are often confronted with misunderstandings in their primary family, which significantly affects their entire development process. Due to the lack of understanding and numerous prejudices that transgender people face, it is necessary to point out that transsexuality is not a whim, a caprice, a “transient phase”, but a radical experience of discrepancy between biological (anatomical) sex and gender identity, and that negative aspects of behavior towards these people often have impact also on their mental health. Taking into account all of the above, and having in mind the rule on redistribution of the burden of proof from Article 45 of the Law on Prohibition of Discrimination, as well as the fact that the company Dunav did not provide any evidence justifying the exclusion of the complainant, it can be concluded that, by the rejection the contract on insurance, the complainant was unjustifiably placed in a less favorable position on the basis of personal characteristics – gender identity, which violated the provisions of Article 6 in relation to Article 17 of the Law on Prohibition of Discrimination. Therefore, the company “VV” Ltd. was recommended to eliminate the consequences of discriminatory treatment of AA and provide equal conditions for concluding a life insurance contract, and to issue a written apology to AA for discriminatory treatment, as well as to comply with regulations prohibiting discrimination in the future.

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković