Naslov
LGBTIQA+ rights before the Croatian courts: Diffusing the potential of an unconstitutional hijacking of exceptions to discrimination under the 2009 Act on combating discrimination

Autori
Horvat Vuković, Ana

Vrsta, podvrsta i kategorija rada
Poglavlja u knjigama, znanstveni

Knjiga
Razvoj i zaštita prava LGBTIQA+ osoba

Urednik/ci
Horvat Vuković, Ana ; Kuzelj, Valentino ; Petričušić, Antonija

Izdavač
Za-Pravo LGBTIQA+ osoba

Grad
Zagreb

Godina
2022

Raspon stranica
73-102

ISBN
9789534998700

Ključne riječi
LGBTIQA+, discrimination, EU law, Croatia, genuine occupational requirement, fostering, adoption, religious ethos

Sažetak
This paper attempts to showcase the development of LGBTIQA+ citizens’ rights to equal access to foster-care and adoption after the 2014 adoption of the Life Partnerships Act, as interpreted in the light of the Croatian antidiscrimination code. As a quintessential issue of equality, prohibition of discrimination on the basis of suspect grounds such as sexual orientation and family status is expressly stipulated in the 2009 Croatian Act on Combating Discrimination (ACD), in implementation of the relevant EU directives as well as the Constitution’s Articles 3 and 14. A synthetic reading of this code and the ECHR (a “corrective” of, and inspiration for constitutional hermeneutics in Croatia, as a quasi–constitutional source of law) will hopefully (continue to) govern contestations of the supra mentioned “battlefields” of homoparentality in Croatia. The denial of equality in these areas is often formulated as based on the ACD’s exceptions to the prohibition of discrimination: the “genuine occupational requirement” concession is particularly relevant to life-partners’ access to fostering, while the negation of their access to adoption centers on a particular interpretation of ACD’s exemption of discrimination in the area of family law whenever this furthers the wellbeing of children and/or protects marriage. With regards to the latter, we will carefully analyze the 2021 case-law of the Zagreb Administrative Court and its groundbreaking decision protecting life partners’ rights to become adoptive parents. We will also offer arguments in favor of this decision’s confirmation in current proceedings before the High Administrative Court. For the sake of exhaustiveness and doctrinal clarity, in addition to the disclosed two exceptions to the prohibition of discrimination we will also add a third among the ACD’s total of ten: a genuine occupational requirement justified by the employer’s religious ethos. As a result of erroneous application of substantive law this exception has also been used in negation of LGBTIQA+ couples’ basic dignity, effectively protecting hate speech directed against them. Given the potential of such speech to promote subordinate citizenship and de-sensitize the general population, we feel that it is most important to explain the lack of a substantive basis for the protection of utterances which cause grave dignitary harm to a vulnerable minority.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

POVEZANOST RADA