Last week, on October 21, the Draft Civil Code of Kosovo was reviewed in the Kosovo Assembly, but it was not voted on because there wasn’t a quorum.

During the session, PDK deputy Mergim Lushtaku said he would vote against the Draft Civil Code. Among other things, he stated that he was “in favor of the family and its preservation,” that the Civil Code gives “legal space for same-sex marriages,” and that according to him, most researchers agree that children raised by both biological parents in a stable marriage are better than children in other family arrangements.”

These statements, in addition to being unfounded, are discriminatory and are insulting not only to the LGBTIQ+ community, but also to all single parents, adoptive parents, childless couples and all other forms of family that do not consist of a heterosexual couple with biological children.

The deputy did not hold back and described KLA youth as “a product of healthy Albanian families who grew up with high moral, national and patriotic values.” However, if we take for granted the deputy’s definition of “good children,” would it not mean that children whose one or both parents have died (including the children of KLA martyrs) cannot be “good children”?

The deputy’s speech is problematic on numerous levels and for various reasons, some of which you can also read about in this article.

But let us consider three issues related to his statement focusing on the fact that: It is not clear to the deputy that the Draft Civil Code continues to discriminate against gay and lesbian couples in its definition of marriage; he uses German Chancellor Angela Merkel’s statement that marriage is between a man and a woman, but the context in which it was said is not clear to him; and most notably, he is unaware about the obligations that the state of Kosovo has and needs to fulfill in order to protect the human rights of gay and lesbian couples.

The Civil Code does not [yet] legalize the marriage and civil union of same-sex couples.

“Marriage is a union registered between two spouses of different genders, through which they freely decide to live together as husband and wife.” This is how the Draft Civil Code defines marriage, and it does not differ in content from the definition of marriage in the Law on Family that is currently in place.

About 50 civil society organizations and activists have publicly reacted, calling the Civil Code discriminatory on the basis of sexual orientation. The reaction underlines that the Draft Civil Code does not ensure legal recognition of same-sex partnerships, be it in the form of civil union or marriage. The code sets out that other forms of civil unions will be regulated with a separate law.

However, even if the Draft Civil Code is passed in the Assembly, same-sex couples will not be able to register their partnerships before public authorities, not through marriage or civil unions. Therefore, the deputy’s statement that “the Draft Civil Code gives legal space for same-sex marriages” is incorrect because the Draft Civil Code continues to exclude gay and lesbian couples from marriage.

Gay and lesbian couples were protected when Merkel voted against their right to marriage.

Same-sex couples in Germany have had the opportunity to formalize their relationship through a civil partnership since 2001. This form of civil union, similar to marriage, has created rights and obligations for couples. Thus, gay and lesbian couples have had the obligation of mutual care and support, the right to choose a common surname, to register joint property, to inherit, to have certain parental rights and to have the right to the settlement of civil partnerships (equivalent to divorce). However, the civil partnership has not given them the legal opportunity to adopt children as a couple. LGBTIQ+ people were able — even then — to legally adopt children as single adoptive parents, but not as a couple.

On June 26, 2017, Chancellor Merkel attended a Brigitte Magazine event where a gay man from the audience asked her when would he be able to call his partner his husband. The Chancellor gave a long answer, saying in part, “I think that married couples and same-sex couples ascribe to the same values of commitment, as I see in marriages between men and women.” She went on to say that she hopes that the decision of the deputies on same-sex marriage will go “toward a decision based on conscience.” 

This statement gave the deputies, including those of the Chancellor’s CDU party, the freedom to vote as they see fit, without feeling compelled to fall in line with their party. Considering that Chancellor Merkel’s CDU party had blocked the vote for marriage between gay and lesbian couples for years, the statement caused a chain reaction and within four days, the other parties in the Bundestag (German Parliament) mobilized and put a vote on the law in the agenda. So, Merkel herself paved the way for the approval of same-sex marriage.

On June 30, 2017, the Bundestag passed the new law, allowing same-sex couples to marry. Chancellor Merkel voted against the law and in a statement for the media explained that despite the vote against same-sex marriage, she has changed her previous position regarding the adoption of children by these couples. She said she thought that same-sex couples should be allowed to adopt children. On the other hand, to her, the meaning of marriage according to the Basic Law of Germany, is between a man and a woman.

So Merkel did not vote against allowing marriage for gay and lesbian couples because she thought that children raised by gay or lesbian parents could not be “good children” and did not vote against it in order to protect the “healthy German family.” For Chancellor Merkel, gay and lesbian couples should have equal rights with heterosexual married couples, but she did not agree for it to be called marriage.

The utilization of Merkel’s personage by deputy Lushtaku by taking her views out of context in order to spread ideas of intolerance, lack of acceptance and discrimination against gay and lesbian couples is not only wrong, but also an attempt to deceive the Kosovar public.

Kosovo needs to protect the rights of same-sex couples, otherwise it violates their rights as guaranteed by the Constitution.

Family relations are protected by the right to a private and a family life. Both of these rights are protected in Kosovo under Articles 36 and 37 of the Constitution, as well as under Article 8 of the European Convention on Human Rights, which is directly applicable in our domestic legislation and prevails in case of conflict to our domestic laws. In addition, the interpretation of the Convention by the European Court of Human Rights (ECtHR) is applied and prevails in Kosovo over domestic law.

10 years ago, the ECtHR ruled that same-sex couples living in stable partnerships enjoy protection within the notion of “family life” protected by the Convention, just as couples of different sexes. In the case of Oliari and others v Italy, three gay couples challenged the Italian state on human rights violations before the ECtHR since Italy offered no form of legal recognition of their relationship: Not as marriage or as civil union. According to the Court, Italy had failed to fulfill its positive obligation under the Convention to provide a legal framework governing the recognition and legal protection of same-sex couples.

Therefore in 2015, the Court ruled in favor of the three gay couples and concluded that their right to a private and a family life had been violated by Italy. The Italian Parliament, a few months after this decision, approved by a majority vote the law on the recognition of same-sex couples.

As in Italy in 2015, the current Kosovo Law on Family and the Draft Civil Code that will replace it, do not provide for any form of recognition and protection of same-sex couples. However, according to the Constitution of Kosovo and the Law on Protection from Discrimination, sexual orientation is provided as a basis for discrimination in cases where public authorities fail to act (i.e., do not issue a legal framework) and by this inaction discriminate, exclude, or limit the rights of persons on the basis of sexual orientation. Such an exception is the lack of protection and legal recognition of gay and lesbian couples.

For these reasons, the state of Kosovo must adopt a legal framework that protects and legally recognizes gay and lesbian couples in order not to fail to meet their obligations to protect their rights. The Draft Civil Code simply stipulates that other forms of civil society will be regulated by a special law. However, the Assembly still has the opportunity to amend the Draft Civil Code and provide for marriage or civil union between gay or lesbian couples as a protected form within the Civil Code.

Otherwise, if the Civil Code enters into force with its current content, the question that the deputies of the Assembly should ask is: How fast can the Government draft the Draft Law on Other Forms of Civil Unions? For the rest of us, it is our responsibility to follow these processes and react when MPs from the Assembly podium promote intolerance, exclusion and discrimination.

Imazhi i ballinës: Arrita Katona / K2.0.