Why Orbán's "child protection referendum" makes no sense, and why it does

This was the lead-up to Hungarian Prime Minister Viktor Orbán's announcement of the "child protection referendum," where, according to Viktor Orbán, "the future of our children is at stake" as the ongoing international debate around the so-called "Child Protection Act" puts "such international pressure" on the country that "only the unified will of the people" can protect it.

The law in question was adopted on 15 June. Its first draft was primarily aimed at introducing heavier criminal sanctions on paedophilia; however, a last-minute amendment to the bill added the sections that limited LGBTQ+ themes in media and sexual education. According to its critics, the law conflates sexual minorities with paedophiles and unnecessarily restricts freedom of expression, possibly erasing LGBTQ+ issues from the public discourse.

Find our detailed piece on the law and its background here.

An exercise in futility

But even though the law is commonly referred to as the "Child Protection Act," its provisions the referendum concerns, inserted into the bill mere days before the parliamentary vote, do little in offering children additional effective protection against potential harm that was not already in place before in Hungarian and European legislation. As it seems, they primarily serve to prevent minors from getting exposure to and information about LGBTQ+ individuals and issues.

On 30 June, the National Election Commission (NVB) had its meeting on the government's initiative. Opposition delegates, three of whom had left the chamber before the vote, argued that the questions are ambiguous and raise several professional concerns. However, the commission eventually approved them by nine votes against two.

On Monday, 16 August, the Hungarian Two-Tailed Dog Party (MKKP, initially a joke party that is getting serious as it's gaining popularity) attacked the decision at the Curia, Hungary’s apex court. They argued that the questions are unclear and that they concern subject matters about which the Parliament already decided.

The referendum announced by the Prime Minister will consist of the following questions:

• Do you support public education facilities having educational programs for underage children, without the parents' consent, that introduce sexual orientations?
• Do you support the propagation of gender reassignment treatments to underage children?
• Do you support making gender reassignment treatments available to underage children?
• Do you support the unrestricted sharing of media content with underage children that influences their sexual development?
• Do you support sharing media content with underage children that portrays gender change [sic]?

Even though Orbán said the referendum is supposed to protect the Child Protection Act, the questions themselves do not always line up with the law perfectly, and when they do, a possible valid result opposing government intentions may lead to rather strange legal consequences thanks to their wording. Let's examine the questions in detail, topic by topic:

Sexual education

• "Do you support public education facilities having educational programs for underage children, without the parents' consent, that introduce sexual orientations?"

This question echoes the Prime Minister's arguments against EU complaints concerning the "Child Protection Act." As he wrote, "sexual education of children is the right of the parent, and without their consent, neither the state nor political parties, neither NGOs nor rainbow activists may play a role," a position he and other members of the governing Fidesz-KDNP coalition have since reiterated in several public statements. However, nowhere does the actual law involve parents or PTAs in decisions concerning children's sexual education.

The sections of the "Child Protection Act" this specific question seemingly aims to reinforce ban the “propagation” of gender reassignment and homosexuality and say that the state must register external organizations that hold school programs on sexual education (among other topics) along with the programs themselves. According to the explanatory memorandum attached to the bill, this is necessary because "questionable" organizations representing "certain sexual orientations" are "influencing children's sexual development," causing them damage.

Despite the government narrative, though, sexual education programs (or, for that matter, any guest programs in schools) could never be held by simply anyone who just happened to waltz into a classroom. Instead, the lecturing person or organization was already required to have a professional recommendation from a body in charge of the program's topic as specified by the Ministry of Human Capacities.

The current law makes hiring unregistered organizations a misdemeanour for both the principal and the lecturer, even though we still know nothing about who would be in charge of this registry. We may soon find out though, as the government already began issuing implementation decrees for the Child Protection Act, setting forth detailed rules; the first one about restricting the sale of books with LGBTQ+ content is already out.

At the NVB meeting, opposition delegates noted that what the question itself implies, getting consent from parents before educational programs presenting homosexuality, sets an impossible task for educators, adding that the official curriculum often touches upon the subject of homosexuality, for instance, in literature. It is also unclear what "parents' consent" and the categorization itself mean. An elected member added that a possible valid "yes" result could create a situation that goes against "the Fundamental Law and common sense."

Gender reassignment and children

• "Do you support the propagation of gender reassignment treatments to underage children?"
• "Do you support making gender reassignment treatments available to underage children?"

It is indeed true that Hungary never had any laws governing this specific subject matter. However, based on medical considerations and other legislation concerning children's rights, minors were never allowed to start the transition process or change their legal gender and name – although, in 2020, Fidesz abolished gender recognition, so the latter is no longer available to adults either.

The Ministry reasoned that "the surgical procedure creates irreversible changes that negatively affect the child's physical development (...) and even speaking of adults, the applicant has to meet certain criteria based on the opinion of a multidisciplinary medical team," adding that hormone therapy also carries certain social and medical risks, concluding that since practising this right to self-determination is tied to certain medical prerequisites, the Ministry categorically denied all such requests from minors.

It must be noted that a hypothetical valid victory of the "yes" option would create a legislative obligation for the Parliament to reverse the earlier practice. Without defining what "gender reassignment treatment" means in the question, this unlikely scenario could force Parliament to create one of the world's most lenient regulations on the medical side of transitioning. However, it would still do nothing to repeal the earlier law abolishing legal recognition, leaving transgender individuals with their birth sex and name in their official documents.

Protecting children from harmful media content

• "Do you support the unrestricted sharing of media content with underage children that influences their sexual development?"
• "Do you support sharing media content with underage children that portrays gender change?"

Protecting children from harmful content in media has always been the focal point of any Hungarian media regulation, and childrens' rights have always been the constitutional basis for these laws restricting freedom of expression. The current paragraph, as amended by the Child Protection Act, reads as follows:

"Any programme that has the potential to impair the physical, mental, or moral development of minors, specifically by having as a defining element the portrayal or propagation of violence, divergence from the identity corresponding to sex at birth, changing genders, or sexual portrayal as an end in itself, shall be classified as Category V. Such a programme shall be rated as not recommended for those under the age of 18."

The only new elements the Act introduced were the mentions of homosexuality, gender identity, and gender change (a broader category than reassignment, including fictional scenarios). As a general rule, programmes fall into category V. if they could potentially have detrimental effects on children’s development. However, by including these new elements in the list of examples, the legislator placed all content featuring such themes into that category.

The change regarding the regulation on adverts was in an almost identical vein.

In practice, these laws will be applied by the media authority NMHH and its governing body, the Media Council, consisting only of the governing party’s candidates. They are expected to publish a directive on the precise application of these regulations in September.

An opposition delegate at the National Election Commission meeting pointed out that if voters end up favouring minors' unrestricted access to “content influencing their sexual development,” that could effectively abolish the entirety of the current rating system, which would render the media regulation incapable of fulfilling its constitutional function of protecting children.

Commission: Hungary violates EU law

These different standards for LGBTQ+ themes in media illustrate the points of contention over which the European Commission has launched an infringement procedure against Hungary. As we reported earlier, the President of the European Commission, Ursula von der Leyen, called the legislation a “shame” on the day it was adopted and vowed to use all powers of the Commission to protect the rights of the Hungarian LGBTQ+ community, stressing:

“I strongly believe in a European Union where you are free to be who you want to be, and where you are free to love whom you want. I believe in a European Union that embraces diversity.”

That same day, commissioners Didier Reynders and Thierry Breton sent a letter informing the Hungarian government that the commission will launch an infringement procedure if the law enters into effect. Since then, it did, and the procedure has also started with a letter of formal notice sent on 15 July, as according to the Commission:

• The law breaches the EU Charter of Fundamental Rights by violating human dignity, freedom of expression and information, the right to respect of private life as well as the right to non-discrimination (Articles 1, 7, 11, 21).
• It also breaches the e-commerce and the Audiovisual Media Services Directives along with a number of other directives by putting restrictions on cross-border services such as broadcasts or online services, violating the fundamental freedom to provide services and the free movement of goods as laid down in the TFEU.
• Because of the gravity of the situation, the law also violates the fundamental values of the EU laid down in Article 2 of the Treaty of the European Union.

The press release notes that the Hungarian government has so far failed to provide any explanation as to why these regulations are non-discriminatory, proportionate, and duly justified, adding that:

“The protection of minors is a legitimate public interest which the EU shares and pursues. However, in this case, Hungary has failed to explain why the exposure of children to LGBTIQ content as such would be detrimental to their well-being or not in line with the best interests of the child.”

The Hungarian government has to respond to the Commission’s arguments by 15 September.

Contesting the primacy of EU law?

These infringement procedures are so-called "structured dialogues" with member states in which the European Commission examines whether the state fulfils its obligations under EU law, which, as is the case now, usually revolve around certain national laws going against European legislation. If this doesn't lead to a result, the Commission defers the case to the European Court of Justice, which, though has a strict view on the primacy of EU law, does leave a certain wiggle room for member states' legal systems, as summarized by a study commissioned by the European Parliament in 2016.

In some situations, EU legislation can easily come into conflict with member states' national identities and fundamental values expressed in their constitutions. These may be accepted as valid excuses for divergence from EU laws, as it happened in these two classic cases:

• National identity was what protected Austria for instance, when a German citizen's adoptive daughter was prohibited from using the man's name which implied nobility, thus restricting her fundamental rights. The Court accepted Austria's reasoning that forbidding such titles was a "proportionate means to pursue a goal central to Austrian national identity."
• In a case that, similarly to one aspect of Hungary’s situation, concerned the freedom of cross-border services, Germany banned laser tag and was sued over this by a company renting such equipment from the UK. The Court found the ban lawful, as even though it limited cross-border services, human dignity, as defined by the German Fundamental Law, prohibited simulations of shooting people.

Although they concern wildly different situations, with these arguments in mind, it’s easy to interpret the referendum as Viktor Orbán building his case to defend the provisions of the Child Protection Act. A successful referendum could easily be cited as an undisputable expression of the people’s will, illustrating that these regulations are central to Hungary’s national identity.

As for fundamental rights enshrined in the constitution, since late 2020, Hungary's Fundamental Law also includes a description that could potentially come in handy in an eventual ECJ procedure:

"Hungary protects the children's right to an identity corresponding to his or her sex at birth and ensures an upbringing for them that reflects the values based on Hungary's constitutional identity and Christian culture."

However, being exempted from applying certain parts of EU law would require proper justification, and chances are thin that the Hungarian government’s reasoning, which basically boils down to “homosexuality is a danger to our children," would sit well with either the Commission or the ECJ.

It is also a question if the referendum would end up valid, which requires more than 50% of eligible voters showing up at the polls. Although an invalid referendum could be just as useful a political weapon as a valid one; In 2016, Hungary had a referendum on the EU's planned refugee quotas, and despite the low, 40% turnout, Orbán celebrated the result as a victory since an overwhelming, nearly 98% majority rejected the resettlement scheme. Despite its invalidity, Orbán still extensively used the referendum results in his political narrative as evidence that Hungary's national goals are incompatible with the migrant quota scheme and taking in refugees, contributing to the failure of the scheme – although for political, and not legal reasons.

A useful distraction

However, for the governing party, the benefits of the referendum do not end at the European level. It seems telling that the Prime Minister had made the announcement just three days after the Pegasus surveillance scandal broke, in which numerous opponents of Orbán’s government also appeared on a list of potential targets, with journalists, politicians, and lawyers confirmed to have actually been wiretapped.

As Hungary is still under a special legal order due to Covid-19, referendums could not be held, but mere hours before Orbán made his announcement, out of nowhere, a decree appeared in the Hungarian Gazette, allowing the initiation of referendums with immediate effect.

With the announcement, the governing party gained back control over the public discourse despite the scandal, and given that the earliest date of the referendum is around October, it will keep the topic at the forefront of domestic politics for a long time, quite possibly until the 2022 general elections, as the ongoing procedures may provide Orbán with enough ammunition to combine his recently inflated issues with sexual minorities with his long-running anti-EU rhetoric.

The referendum is also likely to coincide with opposition primaries, overshadowing that campaign and possible issues pushed by prime ministerial candidates. It is also likely to create tensions in the opposition alliance, as one of its members, formerly far-right Jobbik did vote in favour of the Child Protection Act in June, albeit as they claim, only due to its provisions on paedophilia. The party’s press office said that after a potential election victory, they would “repeal parts of the law that have nothing to do with protecting children.”

The English version of this article was first published on telex.hu in cooperation with Heinrich-Böll-Stiftung Prague.