The European Court of Justice (ECJ) on Tuesday ruled that Hungarian LGBTQ+ laws introduced in 2021 violated EU law and values on multiple levels.
The contentious reforms — dubbed “the amending law” in Hungary and introduced under outgoing Prime Minister Viktor Orbán and his Fidesz party — sought to limit children’s access to information about transgender and homosexual issues and to ease public access to the criminal records of sex offenders, among other changes.
Tuesday’s ECJ judgment will put pressure on Hungary’s incoming government led by Peter Magyar, who won a landslide in elections against longstanding PM Orbán earlier this month, to alter or abolish the laws “without delay” or face sanctions from Brussels.
Which laws did the ECJ deem to be broken?
The court sided with all the complaints the European Commission had lodged against the law. This amounted to a breach or breaches of a series of fundamental laws or principles:
– EU rules guaranteeing the freedom to provide or receive services, in this case information or promotion pertaining to homosexuality or gender variance.
– Protections of several fundamental rights, including the prohibition of discrimination based on sex or sexual orientation, respect for private and family life, and freedom of expression.
– The right to human dignity enshrined in Article 2 of the Treaty on European Union — a principle the court had not previously found a member state to have violated.
– Data protection standards under the EU’s General Data Protection Regulation (GDPR), in this case by making criminal records of sex offenders publicly available in a way the court deemed too imprecise and poorly restricted.
Why did the ECJ deem the law breached free provision and reception of services?
Hungary had justified the new laws largely on the basis of protecting children. The ECJ acknowledged that member states have a degree of autonomy, “in the absence of harmonising rules at EU level,” to decide what content, including audiovisual material, may impair the physical, mental or moral development of minors.
The court also recognised that countries may safeguard parents’ right to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions.
However, those rights must be balanced with the prohibition on discrimination based on sex or sexual orientation guaranteed by Article 21 of the EU Charter of Fundamental Rights.
The ECJ found the discriminatory element in the law’s criterion that any “portrayal or promotion of deviation from the self‑identity corresponding to the sex assigned at birth, of gender reassignment, or of homosexuality … whatever its specific content, is such as to be detrimental to the best interests of the child.”
The court said that approach “reveals a preference for certain identities and sexual orientations to the detriment of others, which are stigmatized as a result, which is incompatible with the requirements flowing, in a society in which pluralism prevails, from the prohibition on discrimination based on sex or sexual orientation.”
Why did the ECJ deem the law breached fundamental rights and respect for human dignity?
The court found the law incompatible with the ban on discrimination against people based on sex or sexual identity.
“In particular, the Hungarian legislation at issue stigmatises and marginalizes 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,” the court said.
It also held that the law’s title associated those persons with individuals convicted of pedophilia, a link the court said was designed “to increase the stigmatization of the former and to encourage hateful conduct towards them.”
By treating a group of people as a threat to society “solely on the basis of their gender identity or sexual orientation” and by establishing, maintaining or reinforcing their social “invisibility,” the law infringed their right to human dignity, the ECJ found.
This is the first time the court has found a member state to be in breach of Article 2 of the Treaty on European Union, which guarantees “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.”
“Hungary cannot validly rely on its national identity as justification for adopting a law which is in breach of the values referred to above,” the court added.
Why did the ECJ deem the law breached data protection standards?
The ECJ also found that rules making sex offenders’ personal information publicly available did not conform with the GDPR.
“Although such access may be lawful in certain circumstances, the Court finds, in essence, that the Hungarian legislation does not provide a sufficiently precise definition either of the persons authorized to access criminal records data or of the substantive conditions for access necessary to offer appropriate safeguards for the rights and freedoms of the persons whose data are concerned,” the court said.
Consequences
Failure to comply with ECJ rulings of this nature typically requires revocation or alteration of the laws to the court’s satisfaction and can lead to financial penalties and other sanctions.
Edited by: Natalie Muller