The legal framework in Montenegro in relation to the rights of LGBTI persons has progressed significantly in the last 10 years, since an intense public discussion on the human rights of LGBTI persons has begun. This progress is reflected in a significant degree of reduction of the level of discrimination and violence against LGBTI persons, as well as a much higher level of acceptance of LGBTI persons in the society of Montenegro. However, the legal framework for respecting the human rights of TIGVQ persons is still incomplete. Legal recognition of gender is still possible only with sterilization, and the right to self-determination is prohibited. Gender normalization operations are still being carried out on intersex children, and protection of their physical integrity is lacking. LGBT people who are TIGVQ do not have the opportunity to achieve equality with their partnerships, just like heterosexual persons.

The following is an overview of legislation that provides protection for human rights to transgender and intersex persons, as well as cases of violation of those rights that are still present in Montenegrin society, both at the social and institutional levels.

The Constitution of Montenegro guarantees the protection of human rights and freedoms (Article 6), prohibits the incitement of hatred on any grounds (Article 7), as well as direct and indirect discrimination on any grounds (Article 8), thereby creating and the basis for the protection of the human rights of LGBTI persons, and reaffirms Montenegro’s obligation to respect international standards in this context (Article 9). The Constitution also guarantees that temporary restrictions on human rights and freedoms may in no case be exercised on the basis of sex, gender,  nationality, race, religion, language, ethnic or social origin, political or other beliefs, property status or any other personal property (Article 25), and also prescribes the right to private and family life (Article 40), and the protection of human dignity and security, as well as of physical and psychological integrity (Article 28)

The Anti-Discrimination Law strictly prohibits discrimination on the basis of sexual orientation, gender identity and intersex characteristics (Article 19), with a clear explanation of these terms. In addition, the same law defines hate speech as a specific form of discrimination on the aforementioned grounds (Article 9a). 

The Criminal law defines sexual orientation and gender identity as aggravating circumstances in cases of hate crime as well as hate speech (Article 41a and Article 443).

The Law on Gender Equality also guarantees protection on the basis of gender identity, through the protection not only of men and women, but also of “persons of different gender identities” equally in all spheres of social life, and prohibits discrimination against a person on the basis of “gender change” (Article 1 and Article 4).

The Law on Social and Child Welfare stipulates that social and child protection aims at improving the quality of life and empowerment for the independent and productive life of the individual and family, and in the achievement of the goals of social and child protection guarantees special protection for the child, the young person and then the adult and the elderly who is a victim of abuse, neglect, domestic violence and exploitation or who is at risk of falling victim; who, due to special circumstances and social risk, needs an appropriate form of social protection (Article 4). The principles of social protection are based on: respect for the integrity and dignity of beneficiaries of social protection, prohibition of discrimination, informing beneficiaries, individual access, active participation of beneficiaries in the creation, selection and use of social and child welfare rights, respect for the best interests of beneficiaries, prevention institutionalization and accessibility of services in the least restrictive environment, pluralism of services and providers, partnerships and associations of different operators and programs, especially at local level, transparency (Article 7).

 

The Health Care Law guarantees the right to health care „in accordance with the highest possible health standards and achievements of modern medical theory and practice“, prohibiting discrimination on the basis of sexual orientation and gender identity (Articles 4 and Article 5).

 

The Law on Patient Rights provides for the right to human dignity, physical and mental integrity and respect for human rights (Article 1).

The Law on Health Insurance grants the right to transgender persons to health care with regard to the gender affirming process, which is covered by compulsory health insurance in the amount of 80% of the total cost (Article 18).

 

The Rulebook on Determining Medical Reasons for Sex Change was adopted by the Ministry of Health and defines the criteria for access to the right to cover the costs of the process of gender adjustment through compulsory health insurance. On the basis of the rulebook, medical reasons for changing the sex of the insured person are determined by: examination at the level of primary health care, examination and diagnosis of doctors of internal medicine specialist (general internal medicine, endocrinology), doctors of surgery specialist (general surgery, plastic and reconstructive surgery, urology and gynecology), as appropriate, other specialist doctors or specialists in the narrow field of medicine, a report by a psychiatrist and psychologist, and a social history of the social worker. Opinion on the existence of medical reasons for changing the sex of the insured person is provided by a medical doctor’s office of the relevant specialty of the Clinical Center of Montenegro. The Ordinance provides for the possibility of accessing the process of gender adjustment for transgender persons over 16 years of age.

 

Legal gender recognition in Montenegro is taking place throughout the implementation of  The law on National Registers (Article. 6) which allows trans people to change their gender, but without clear guidelines about the procedure itself, which in practice prevents transgender people from changing their gender without having previous sterilization. Such a practice is completely contrary to international law and the judgments of the European Court of Human Rights, which in 2017 ruled that sterilization and all interventions that may lead to sterilization, including hormone therapy, as a precondition for legal recognition of gender, is a clear violation of human rights. It is for this reason, new Strategy for Improving the Quality of Life of LGBTI Persons in Montenegro for the Period 2019-2023., defines creation of The Law on gender identity as one of the strategic goals, which will be fully aligned with international law and obligations. The Bill on Gender Identity, presented by the LGBTIQ Association of Queer Montenegro, NGO Juventas and the Institute for Legal Studies, and in consultation with the Association Spectra, proposes a model for the legal recognition of gender without medical interventions as a prerequisite, and explicitly prohibits the implementation of gender corrective surgery (not medically indicated) over intersex children and adults without their consent.

 

The Strategy for Improving the Quality of Life of LGBTI Persons in Montenegro for the Period 2019-2023, is another strategic document that deals specifically with the human rights of LGBTI persons in Montenegro. The Strategy has a comprehensive approach to the human rights of LGBTI persons in Montenegro and defines strategic goals and activities in the following areas: LGBTI social acceptance, security and protection of LGBTI persons’ human rights, employment and access to work, health care, social protection and LGBTI tourism.

International documents are of great importance for the human rights of transgender and intersex persons, which are the basis for respect for human rights of transgender and persons with different sex caracteristics, and on which the legal and strategic documents of Montenegro are based:

 

European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome 04.11.1950), which regulates the prohibition of discrimination and the enjoyment of rights and freedoms without discrimination on any grounds, such as gender, race, color, language, religion, political or second opinion, national or social origin, connection with a national minority, wealth, birth or other status;

Recommendation of the Committee of Ministers of the Council of Europe to Member States no. (2010) / 5, on measures to combat discrimination based on sexual orientation or gender identity, recommending the abolition of legislative and other measures that result in discrimination against LGBT persons, and to adopt and implement measures that will serve to combat discrimination, respect human rights and promoting tolerance;

               European Parliament resolution on the rights of interpolar persons (2018 (2878) (RSP)), calling on all European Commission and all Member States to create legislation that will regulate the human rights of intersex persons, strongly condemns the „normalization“ of intersex persons, the need to ensure adequate health and social protection, calls for the depatologization of intersex persons, and points to the importance of cooperation between Member States and organizations dealing with the protection and promotion of human rights of intersex persons, and to support the work of such organizations;

 

Council of Europe Parliamentary Assembly Resolution 2191 (2017) on the promotion of human rights and the elimination of discrimination against intersex persons, calls on Member States to work to raise awareness of discrimination against intersex persons, to prohibit medical intervention „normalization“ without the prior consent of intersex persons who are not medically indicated , improve access to intersex persons’ health care, secure gender-based recognition of self-determination, and further work to eliminate discrimination against intersex persons through conducting research and awareness campaigns;

Council of Europe Parliamentary Assembly Resolution 2048 (2015): Discrimination against Transgender People in Europe, calls on Member States to provide adequate mechanisms to combat transgender discrimination, conduct research on discrimination against transgender persons, involve organizations dealing with the protection and promotion of transgender human rights in designing and implementing policies concerning the human rights of trans persons, and to provide adequate access to legal protection, legal recognition of gender on the basis of self-determination, as well as to conduct awareness campaigns and education of professionals of different professions regarding the human rights of transgender persons;

CEDAW – The Committee on the Elimination of Discrimination against Women, in its 2017 Concluding Recommendations to Montenegro, states that it is necessary for the Government to show zero tolerance of discrimination and violence against LBT women, with adequate penalties for perpetrators / offenders.