Hungary's infamous ban on LGBTQ+ content deemed to be violation of EU law

LAST UPDATE | 20 hrs ago

A HUNGARIAN LAW that harshly restricts access to LGBTQ-related content is a violation of European Union law, according to the Advocate General of the EU’s Court of Justice.

By banning content about LGBTQ+ sexualities and gender identities from being available to under-18s, Hungary is infringing on the treaty that sets out the EU’s fundamental principles, the Advocate General’s formal legal opinion stated.

The Treaty of the European Union outlines that the EU 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”.

By calling into question the equality of LGBTQ+ people, Hungary has “negated” several of the EU’s fundamental values, Advocate General Tamara Ćapeta said.

It has also “significantly deviated from the model of a constitutional democracy”.

In 2021, Hungary’s parliament passed a bill that effectively banned communicating with children and teenagers about sexual orientations and gender identities.

The impacts affected education programmes, meaning students could not be educated about LGBTQ+ identities, and media like books and movies, including movies that depict LGBTQ+ being classified as 18+.

The European Commission brought an infringement action before the Court of Justice against Hungary over the law and Ćapeta has now set out her legal opinion that the Court rule the action is well-founded.

She said the legislation infringed on the freedom enshrined in EU law to provide and receive services.

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It also interferes with fundamental rights protected by the EU Charter of Fundamental Rights, namely the prohibition of discrimination on grounds of sex and sexual orientation; respect for private and family life; freedom of expression and information; and the right to human dignity. 

Capéta said these interferences cannot be justified by the reasons put forward by Hungary, which tried to argue for the law on the basis of protection of the “healthy development of minors” and the “right of parents to raise their children according to their personal convictions”.

The Advocate General said the Hungarian legislation is not limited to shielding minors from pornographic content, which was already prohibited by the law in Hungary prior to the 2021 legislation, and goes as far as prohibiting the portrayal of ordinary lives of LGBTQ+ people.

She said that Hungary has not offered any proof of a potential risk of harm of content that portrays ordinary lives of LGBTQ+ people to the healthy development of minors and that consequently, its legislation is “based on a value judgment that homosexual and non-cisgender life is not of equal value or status as heterosexual and cisgender life”.

The EU legal system recognises that there can be different visions among member states about how common values should be implemented in practice, and that disagreements about fundamental rights should not result in a finding of an infringement of the Treaty of the European Union.

However, Hungary’s actions in this case are not a matter of a “disagreement”, Capéta said.

She said that LGBTQ+ people being deserving of equal respect in member states is “not open to contestation through dialogue”.

She said:

Disrespect and marginalisation of a group in a society are the ‘red lines’ imposed by the values of equality, human dignity and respect for human rights.

As such, “by calling into question the equality of LGBTI persons, Hungary is not demonstrating a disagreement or a divergence about the content of the values of the European Union”.

“Instead, that Member State has negated several of those fundamental values and, thus, has significantly deviated from the model of a constitutional democracy, reflected in Article 2 of the Treaty of the European Union.”

An Advocate General’s opinion is not binding on the Court of Justice but gives the Court a proposed legal solution to cases it is responsible for.

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The judges of the court are now beginning deliberations on the case. 

If the Court of Justice finds a member state has failed to fulfil obligations of EU law, the the country must comply with the Court’s judgment “without delay” or face further action like financial penalties.

‘No place in the EU’

Dávid Vig, director of Amnesty International Hungary, said the Advocate General’s opinion “made it clear the [anti-LGBTQ+] law has no place in Hungary and the European Union”.

“The discriminatory law violates several human rights and promotes the idea that the life of LGBTI people is not of equal value,” Vig said.

In March of this year, the Hungarian parliament passed legislation that restricts freedom of assembly and consequently prohibited LGBTQ+ Pride marches.

LGBTQ+ rights organisation ILGA-Europe said the today’s opinion from the Advocate General should mean the anti-Pride legislation is also considered to be violating EU law.

“The AG’s opinion is very clear in that Hungary breaches EU law and the Treaties by enacting the anti-LGBTI legislation from 2021,” said ILGA-Europe’s advocacy director Katrin Hugendubel.

“The new package of amendments adopted this year to criminalise Pride marches and their organisers builds directly on that unlawful legislation and must therefore also be considered a violation of EU law.”

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