The European Commission has initiated the second phase of its infringement procedure against Hungary due to the discriminatory laws adopted by the Hungarian government on 23 June, 2021. The so-called “Anti-Paedophilia Act” was initially tabled to introduce a more severe punishment for sexual crimes against minors. However, Hungarian Prime Minister Viktor Orbán’s party, Fidesz, added provisions banning the “portrayal and the promotion of gender identity different from sex at birth, the change of sex and homosexuality.”[1] The law also states that sex education classes can no longer “promote” homosexuality or sex reassignment and such classes themselves can only be held by registered organisations. The law also seeks to censor advertising by enforcing restrictions on ads with LGBTQ+ content. [1]

On 15 July 2021, the European Commission notified Hungary regarding the beginning of infringement proceedings in relation to the proposed laws. Hungary refused to cooperate with the Commission which led to the initiation of the second phase of the infringement process on 2 December 2021. The Commission sent Hungary a “reasoned opinion” letter, outlining the parts of the new Hungarian law that are breaching EU law, and requiring it be changed to be brought in line with international law. [1] 

The Commission elucidated its concerns regarding breaches to fundamental EU law when it comes to the freedom to provide services and the free movement of goods. Hungary, the Commission says, has not shown how restrictions in its legislative amendments are duly justified, non-discriminatory, and proportionate, as required by international law. The EU clarified breaches of the Audiovisual Media Services Directive and the e-commerce Directive, citing restrictions in the amendments regarding audiovisual media content, including discrimination based on sexual orientation. [1] The Commission also deems that the Hungarian laws violate human dignity, freedom of expression and information, the right to respect for private life as well as the right to non-discrimination as enshrined in Articles 1, 7, 11 and 21 of the EU Charter of Fundamental Rights. Subsequently, the laws amount to a violation of Article 2 of the Treaties of the European Union, which states: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.”[2]

Background

The recent amendments and Hungary’s hostile response to the Commission is extremely troubling for LGBTQ+ rights. The bill can be seen as the culmination of the Hungarian government’s attempt to undermine its international obligations in the protection and implementation of LGBTQ+ persons and their rights in the country. Since coming to power in 2010, LGBTQ+ rights have rapidly regressed under Orban, with the most significant move undertaken by this administration being a constitutional provision banning same-sex marriage enacted in 2012. 

Ramping up the anti-LGBTQ+ campaign, in 2018 the government banned the teaching of gender studies in Hungarian universities. Following this, in May 2020, the government prohibited transgender Hungarians from changing their gender on official government documents. In the same year, the government effectively banned same-sex adoptions by implementing a law permitting only married couples to adopt. [3]

In December 2020, the government approved a constitutional reform package that strengthened the anti-LGBTQ+ constitutional provisions. It stated that the family is defined as being “based on marriage and the parent-child relation. The mother is a woman, the father a man.”[4] The package also abolished the Equal Treatment Authority, Hungary’s most vital nondiscrimination agency covering LGBTQ+ rights.

Hungary and the European Commission 

This is not the first instance in which the European Commission was forced to take action regarding Hungarian policies. In 2018, Hungary came under scrutiny from the European Commission regarding the implementation of an amendment to Hungary’s Criminal Code. The amendment criminalised a range of activities related to migration including “border monitoring”, “preparation or distribution of information materials”, and “building or operating a network in support of facilitating illegal immigration.”[5] The case was referred to the Court of Justice of the European Union (CJEU) which found, on 21 November, 2021, that Hungary violated both the Procedures and Reception Directives of the EU by allowing applications for asylum by those arriving in Hungary through “safe transit country” to be deemed as inadmissible. The court also found the criminalisation of those who provide assistance to asylum-seekers to be unlawful and a violation of International law. [5]

The President of the European Commission, Ursula Von der Leyen, who introduced the first ever EU strategy for LGBTQ+ equality in 2020,[6] expressed deep concern regarding the new anti-LGBTQ+ measures. She stated, “I strongly believe in a European Union where you are free to love who you want, and I believe in a European Union that embraces diversity… So I will use all the powers of the Commission to ensure that the rights of all EU citizens are guaranteed.”[7] The Hungarian Prime Minister, Viktor Orbán responded by accusing the Commission of “legalised hooliganism” stating that the Commission’s ‘liberal elite’ “behave like the colonialists of old, who told other countries what laws they were allowed to have, how they should live and how they should behave.”. [8]

Reactions and impact

Hungarian politicians justify the continued disintegration of fundamental rights by using the language of human rights, positioning themselves as the protectors of free speech and religious freedom in the country.  Experts have argued that “it seems that we have always needed enemies and scape-goats; if they have not been readily available, we have created them…the role of the enemy is more fixed than those filling the role.” [9]  In this way, LGBTQ+ identities have come to conceal a larger issue, being construed as a threat to the ‘traditional values’ that, according to Fidesz, define Hungarian society.[10] Consequently, the Commission’s intervention has also been framed as an attack, with one Government spokesperson echoing Orban in calling the Commission’s infringement procedures against Hungary “a new level of colonial and moral imperialism.”[11]

The laws will have real life consequences for LGBTQ+ people in Hungary. NGOs, member states and international organizations alike expressed deep concern about how this will impact the lives of LGBTQ+ Hungarians. In a recent report by the European Agency for Fundamental Rights, 72% of Hungarian respondents to the survey often or always avoid holding hands with their same-sex partner in Hungary, while 40% of the respondents avoid certain locations for fear of being assaulted. One interviewee stated “One word I could use to write [about] my life is fear. Fear of people losing my friends and family because in the media politics portrays LGBTI people as sick that this is not normal. I have to keep hiding in my life. I can never be myself, so I can’t be really happy.”[12]

David Vig, director of Amnesty International Hungary, expressed his sorrow on the day the bill was passed, lamenting that “This is a dark day for LGBTI rights and for Hungary…this new legislation will further stigmatise LGBTI people and their allies. It will expose people already facing a hostile environment to even greater discrimination…Tagging these amendments to a bill that seeks to crack down on child abuse appears to be a deliberate attempt by the Hungarian government to conflate paedophilia with LGBTI people.” [4]  In a joint statement, 18 EU member states condemned Hungary’s actions stating “It [the law] represents a flagrant form of discrimination based on sexual orientation, gender identity and expression and hence deserves to be condemned. Inclusion, human dignity and equality are core values of our European Union and we cannot compromise on these principles.”[13]  Following this, in an open letter, 23 NGOs have said that the bill “will lead to further violence and discrimination against LGBTQIA+ persons on the basis of their gender identity and sexual orientation” and they have called on the Hungarian government to reverse regressive legislation which “directly attacks and discriminates against LGBTQIA+ persons.” [14]

Conclusion

A 2021, an Ipsos poll found that 59% of Hungarians today support same-sex couples’ adoption rights, compared to 42% in 2013. Regarding same-sex marriage in the same poll, 46% were in favor versus 38% who were opposed. [15] These numbers suggest the recent anti-LGBTQ+ laws are not a response to a public outcry, but more so a political tactic to solidify Fidesz’s power. [16] Hungary now has two months to remedy the breaches identified by the Commission. If they do not amend the law to remove the anti-LGBTI provisions, then the Commission will refer the case to the CJEU.       

Notes 

[1] The European Commission, ‘EU founding values: Commission starts legal action against Hungary and Poland for violations of fundamental rights of LGBTIQ people.’ (15 July 2021)

[2]  The Treaty on European Union, (1992) OJ C 236, TITLE I COMMON PROVISIONS, Article 2.

[3] APNews, ‘Rights groups condemn Hungarian ban on same-sex adoptions’ (16 December 2020).

[4] Amnesty International, ‘Hungary: Dark day for LGBTI rights as homophobic and transphobic law adopted.’ (15 June 2021)

[5] Amnesty International, ‘Hungary: Court of Justice of the EU rejects anti-migrant ”Stop Soros” law’ (16 November 2021).

[6]  The European Commission, ‘Union of Equality: The Commission presents its first-ever strategy on LGBTIQ equality in the EU’ (12 November 2020). 

[7]  Florian Eder and Hans Der Burchard, ‘“A shame”: Von der Leyen vows EU will fight Hungary’s anti-LGBTQ+ law.’ Politico (23 June 2021)

[8] ILGA, ‘EU Holds Firm in Face of Hungary’s Blatant Lies Surrounding Anti-LGBTI Law’ (12 December 2021) 

[9]  David Finlay et al. Enemies in Politics. (Rand McNally, 1967) p. 7 

[10] Human Rights Watch, ‘Hungary’s Path Puts Everyone’s Rights in Danger.’ (Hungary, 12 December 2021).

[11]  Daniel McLoughlan, ‘EU tells Hungary to quash ‘disgraceful’ anti-LGBT law’ The Irish Times (Dublin, 7 July 2021) 

[12]  European Agency for Fundamental Rights, ‘EU LGBTI survey II, A long way to go for LGBTI equality’ (2021).

[13] Sophie Wilmes, ‘Eighteen Countries Unite at Belgiums Initiative to Defend LGBTQ Rights in Europe.’ (Belgium, 22 June 2021).

[14]  CIVICUS, ‘Hungary: concerns over the erosion of the rights of LGBTQIA+ persons.’ (26 August 2021). 

[15]  Ipsos, ‘LGBT+ Pride 2021 Global Survey’ (07 May 2021).

[16] Zach Beauchamp, ‘How hatred of gay people became a key plank in Hungary’s authoritarian turn.’ VOX (28 June 2021).

Sources and further readings 

Reports

CIVICUS, ‘Hungary: concerns over the erosion of the rights of LGBTQIA+ persons.’ (26 August 2021). Available at: https://www.civicus.org/index.php/media-resources/media-releases/open-letters/5249-hungary-concerns-over-the-erosion-of-the-rights-of-lgbtqia-persons accessed 15 December 2021.

European Agency for Fundamental Rights, ‘EU LGBTI survey II, A long way to go for LGBTI equality.’ (2021) Available at: https://fra.europa.eu/sites/default/files/fra_uploads/lgbti-survey-country-data_hungary.pdf accessed on 13 December 2021.

Ipsos, ‘LGBT+ Pride 2021 Global Survey’ (07 May 2021) Available at: https://www.ipsos.com/sites/default/files/ct/news/documents/2021-06/lgbt-pride-2021-global-survey-ipsos.pdf accessed on 13 December 2021.

The European Commission, ‘EU founding values: Commission starts legal action against Hungary and Poland for violations of fundamental rights of LGBTIQ people.’ (15 July 2021) Available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_21_3668 accessed on 14 December 2021.

The European Commission, ‘Union of Equality: The Commission presents its first-ever strategy on LGBTIQ equality in the EU’ (12 November 2020) Available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2068 accessed 15 December 2021. 

Statutes and Statutory Instruments

The Treaty on European Union, (1992) OJ C 236.

News Articles 

Amnesty International, ‘Hungary: Court of Justice of the EU rejects anti-migrant ”Stop Soros” law’ (16 November 2021) Available at: https://www.amnesty.org/en/latest/news/2021/11/hungary-court-of-justice-of-the-eu-rejects-anti-migrant-stop-soros-law/ accessed on 16 December 2021.

Amnesty International, ‘Hungary: Dark day for LGBTI rights as homophobic and transphobic law adopted.’ (15 June 2021) Available at: https://www.amnesty.org/en/latest/news/2021/06/hungary-dark-day-for-lgbti-rights-as-homophobic-and-transphobic-law-adopted/ accessed 13 December 2021.

APNews, ‘Rights groups condemn Hungarian ban on same-sex adoptions’ (16 December 2020) Available at: https://apnews.com/article/relationships-budapest-viktor-orban-couples-adoption-4e9eca5bc90c7810a26e08c9178bae90 accessed on 14 December 2021.

Daniel McLoughlan, ‘EU tells Hungary to quash ‘disgraceful’ anti-LGBT law’ The Irish Times (Dublin, 7 July 2021). Available at: https://www.irishtimes.com/news/world/europe/eu-tells-hungary-to-quash-disgraceful-anti-lgbt-law-1.4613912 accessed on 14 December 2021.

Florian Eder and Hans Der Burchard, ‘A shame’: Von der Leyen vows EU will fight Hungary’s anti-LGBTQ+ law. Politico (23 June 2021) Available at: https://www.politico.eu/article/european-commission-legal-steps-hungarys-anti-lgbtq-law/ accessed on 15 December 2021. 

Human Rights Watch, ‘Hungary’s Path Puts Everyone’s Rights in Danger.’ (Hungary, 12 December 2021) Available at: https://www.hrw.org/news/2021/10/06/hungarys-path-puts-everyones-rights-danger accessed 14 December 2021.

ILGA, ‘EU Holds Firm in Face of Hungary’s Blatant Lies Surrounding Anti-LGBTI Law’ (12 December 2021) Available at: https://www.ilga-europe.org/resources/news/latest-news/eu-holds-firm-face-hungarys-blatant-lies-surrounding-anti-lgbti-law accessed on 13 December 2021.

Sophie Wilmes, ‘Eighteen Countries Unite at Belgiums Initiative to Defend LGBTQ Rights in Europe.’ (Belgium, 22 June 2021) Available at: https://wilmes.belgium.be/en/thirteen-countries-unite-belgiums-initiative-defend-lgbtiq-rights-europe accessed on 13 December 2021.

Zach Beauchamp, ‘How hatred of gay people became a key plank in Hungary’s authoritarian turn.’ VOX (28 June 2021) Available at: https://www.vox.com/22547228/hungary-orban-lgbt-law-pedophilia-authoritarian accessed on 15 December 2021.

Books 

Finlay, D et al. Enemies in Politics. (Rand McNally, 1967).