By: Guillermo Ferrer Hernáez, Junior Research Associate, PILPG-NL
Global efforts to secure the human rights of LGBTQIA+ individuals are on the rise. In recent decades, authorities have passed laws to guarantee their protection from abuse, discrimination, and persecution. Despite these advances, LGTBQIA+ members of some Eastern European states are concerned about the regression of their rights.
For instance, on June 23, 2021, the Hungarian government implemented amendments to Act LXXIX, the legislation on public education, to supposedly protect children from “gender ideology.” This legislative proposal prompted the European Commission to open an infringement case against Hungary in July 2021, as it claims that these changes violate the fundamental rights of LGBTQIA+ people, such as the rights to freedom of expression and non-discrimination as guaranteed under the EU Charter of Fundamental Rights, along with other violations of EU law, such as of Article 2 of the Treaty on European Union, which lays down the foundational values of the EU.
This blog will examine the compatibility of these amendments with European human rights standards, considering the opinion of the Council of Europe Venice Commission issued in December 2021. In addition, the article will assess whether Hungary may be violating fundamental European Union (EU) values and whether the EU will consider taking further action.
The Venice Commission’s report
The Venice Commission, an advisory body of the Council of Europe composed of independent experts in the field of constitutional law, assessed the compatibility of these amendments with human rights standards, considering the substantive and procedural aspects of domestic law.
While this body is not part of the EU, EU institutions consider its opinions when the EU discusses its efforts to safeguard and protect the rule of law. In this regard, the European Commission has long been reiterating its serious concerns about amendments to Hungarian law, using the reports of the Venice Commission as a basis.
Background to the amendments
The Fundamental Law of Hungary, the 2011 Hungarian Constitution, inspired the creation of these new amendments. The new Article XVI(1) of the Fundamental Law, adopted in the Ninth Amendment, establishes that Hungary needs to protect the right of children to self-identity corresponding with their sex at birth, and must ensure an upbringing for them that is in accordance with the values based on the constitutional identity and Christian culture of Hungary.
The Venice Commission expressed its concern about protecting Hungarian values as expressed in the Hungarian Constitution to the detriment of human rights, recognizing that under Articles 8 and 14 of the European Convention on Human Rights (ECHR), these provisions may result in discrimination based on sexual orientation and gender identity, thereby violating applicable international human rights norms. Nevertheless, the Hungarian government did not consider any of the Commission’s findings.
Procedural and substantive criticisms of the amendments
The Venice Commission’s findings are based on both procedural and substantive elements of the legislation and its adoption. It found that the Hungarian legislation titled “Act on taking more severe action against paedophile offenders and amending certain Acts for the protection of children” denotes a negative connotation of sexual orientation and gender identity by suggesting that homosexuality could be equated with paedophilia. The Hungarian Ministry of Justice argues that the inclusion of both topics was simply a matter of law-making technique, disregarding the Venice Commission’s opinion.
Moreover, the Venice Commission highlighted that these amendments directly affect the right to freedom of expression of individuals who might want to express their sexual or gender identity. The right to freedom of expression, safeguarded under Article 10 ECHR, establishes that anyone is entitled to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. States may impose restrictions on this right if the three cumulative conditions are met: the restriction is prescribed by law, legitimate, and proportional. These constitutional experts argued that, in this case, these conditions are not met.
The Hungarian amendments include limitations on educating children with content aimed at propagating divergence from self-identity corresponding to sex at birth, sex change, or homosexuality. The Venice Commission noted that authorities might be tempted to use the notion of public education to promote a single philosophy of life. However, Article 2 of Protocol nº1 to the ECHR grants parents the right to educate their children in conformity with their convictions, which include tolerance and respect to the LGBTQIA+ community. There should not be any discrimination in the enjoyment of this right, as underlined under Article 14 ECHR. Therefore, the Commission further noted that governments must ensure a pluralist curriculum that avoids indoctrination and the freedom of parents to choose their children's education
Violations of EU law
On July 8, 2021, the European Parliament, considering the opinions of the Venice Commission, implemented a resolution condemning the terms of this law and stating that the different Hungarian provisions violate fundamental rights under the Charter and the Treaties and EU internal market legislation. In addition, the European Parliament expressed that violations of the human rights of LGBTQIA+ individuals should be considered as a systematic violation of Article 2 of the TEU.
In December 2021, the European Commission sent a reasoned opinion to the Hungarian government demanding that these new amendments be changed to bring Hungary in compliance with EU law. Therefore, if Hungary does not remedy the breaches by February 2022, the EU will likely take further legal actions against Hungary.
Given Hungary's dismissals of previous criticisms by the Venice Commission and EU institutions, the EU has decided to take a cross-cutting strategy to bring the Hungarian authorities into compliance with European treaties and regulations. If the Hungarian government fails to address these concerns, the European Commission could send the case to the Court of Justice of the EU based on the infringement of EU law. The CJEU could then rule whether Hungary must annul or amend the law, imposing a financial penalty up to 100,000 euros per day if Budapest does not comply. In addition, the EU could propose freezing EU structural funds including Covid-19 bailouts.
Conclusion
The common basis of the EU is the rule of law, on which all of Europe's advantages, such as open borders and freedom of movement and residence, are based. This implies that European citizens should be able to rely on governments that respect democratic principles, human rights, and EU laws. As seen in this post, various EU institutions, drawing on the work of the Venice Commission, have held that Hungary’s legislative changes in the field of LGBTQIA+ rights do not provide these assurances to its citizens. Their next steps will therefore seek to bring Hungary into compliance, protect the dignity and human rights of LGBTQIA+ individuals, and safeguard the viability of the EU project more generally.