Hungary: Orban-era LGBTQ Rules Violate EU Laws, ECJ Rules

The European Court of Justice (ECJ) has ruled that Hungary’s 2021 legislation on transgender and homosexual identities, as well as sex offenses, contravenes several EU legal principles. This includes Article 2 of the EU Treaty, which safeguards human dignity. The court’s decision, issued on Tuesday, highlights how the laws enacted under outgoing Prime Minister Viktor Orban’s Fidesz party undermine EU values and rights.

Controversial Reforms Target LGBTQ+ Rights

The disputed reforms, referred to as “the amending law” in Hungary, aim to restrict children’s exposure to information about transgender and homosexual identities. They also simplify the public access to sex offenders’ records. These measures, critics argue, create a framework that disproportionately affects LGBTQ+ communities. The ECJ found that the legislation fails to align with EU legal standards, particularly in its treatment of identity and orientation.

“The approach reveals a preference for certain identities and sexual orientations to the detriment of others, which are stigmatized as a result, incompatible with the requirements of a pluralistic society from the prohibition on discrimination based on sex or sexual orientation.”

The court emphasized that the law’s discriminatory nature hinges on associating non-cisgender and non-heterosexual individuals with pedophiles, thereby stigmatizing them. This connection, according to the ECJ, is designed to foster prejudice and hatred. The ruling states that the legislation treats people as societal threats solely based on their gender identity or sexual orientation, violating their right to human dignity.

Pressure on New Hungarian Government

With the incoming government led by Peter Magyar, who recently won a decisive election victory over Orban, the ECJ has urged immediate changes or repeal of the laws. The court ruled that Hungary’s justification for protecting children through these measures does not outweigh the infringement on fundamental rights. It also noted that while member states have some autonomy in content regulation, this must balance with the prohibition on discrimination.

“In particular, the Hungarian legislation at issue stigmatises and marginalises non-cisgender persons – including transgender persons – or non-heterosexual persons as being detrimental to the physical, mental and moral development of minors solely on the basis of their gender identity or sexual orientation.”

Additionally, the ECJ determined that the rules on public access to sex offenders’ data do not comply with the General Data Protection Regulation (GDPR). While such access may be lawful in some cases, the court found it insufficiently justified under the EU’s data protection standards. This marks the first time the ECJ has identified a breach of Article 2 of the Treaty of the European Union, which upholds “values of respect for human dignity, freedom, democracy, equality, and human rights.” The court concluded that Hungary cannot use its national identity to justify this violation.