Since 2010, the Hungarian Government has been advocating for a conservative, restrictive notion of the family. In 2020, their anti-LGBTQI agenda rapidly started to repeal rights and benefits that had been available for decades.
This article presents the background developments and the extensive advocacy efforts of one Hungarian and two Brussel-based NGOs that have grown into the single most supported human rights case in the history of the European Union so far.
The context and immediate impact of the so-called ‘child protection’ law in Hungary
The legal rampage of LGBTQI-rights by the Orbán-government in Hungary began with banning legal gender recognition in May 2020 (passing Section 33). It continued in the fall with the LGBTQI-exclusionary reform of the adoption process, to which only a minister – not a childcare professional – can grant an exemption.
The Ninth Amendment to the Fundamental Law passed in November 2020 contained two provisions of particular relevance to the LGBTQI community. First, a new clause was added to Article L declaring that “(t)he mother is a woman, the father is a man”. Second, Article XVI (1) was augmented with the following provision: “Hungary protects children’s right to their identity in line with their birth sex, and their right to education according to our country’s constitutional identity and system of values based on Christian culture”.
These amendments, as predicted, paved the way for a neatly tailored, large-scale attack on sexual and gender minorities. They led to the adoption of the so-called ‘child protection’ law in June 2021 (also referred to as the ‘anti-LGBT’ or propaganda law), which continues to provide a basis for fear-mongering against the LGBTQI community and justifies the suppression of speech about and the display of non-mainstream sexual orientations and gender identities. The law – which amended a number of sectoral laws – bans access for minors to “content (...) that depicts or propagates divergence from self-identity corresponding to sex at birth, sex change, or homosexuality.”
The vague formulation of the provisions and the fact that even Government officials cannot define what constitutes “propagation”, results in extensive caution and self-censorship from those who come within the scope of the ban. The amendment to the National Public Education Act practically made every discussion on sexuality, sexual orientation and gender diversity disappear from the schools. It is unclear to teachers, school psychologist and other professionals working with children what content they can openly share, teach or discuss in schools, and thus they rather refrain from touching upon anything that could potentially fall within the scope of the so-called ‘child protection’ law.
Remaining silent may protect these adults from sanctions, but it puts children belonging to a sexual or gender minority in a precarious position. The prevailing, widespread anti-LGBTQI rhetoric and campaigning have normalized homophobia and transphobia in the public discourse, leaving LGBTQI children, who are often subject to bullying, stigmatization and even violence, on their own.
The amended provisions of the Media Act have undoubtedly encouraged self-appointed censors to report any content that remotely relates to LGBTQI topics to the Media Council. The procedures described above indicate that the media authority makes explicit reference to the so-called ‘child protection’ law on a selective basis, following the spirit of the law and seeking to sanction LGBTQI content that has not been rated adequately in its view. While authorities abroad regulating the media have so far refrained from imposing sanctions at the request of Hungary’s Media Council, such proceedings contribute to the chilling effect of the law.
The advocacy campaign against the law and for an infringement procedure
In June 2021, Forbidden Colours was the first organization to communicate the preparation of the so-called ‘child protection’ law in Hungary internationally. Immediately joining forces with Háttér Society, they organized the first campaigns against the law at EU level, which led to the adoption of several declarations by EU Member States condemning the law just a few days after it had been passed by the Hungarian Parliament.
As the text of the law constituted a blatant violation of several pieces of secondary EU legislation (e.g. the Audiovisual Directive), they continued to put pressure on the European Commission (EC), making sure that it started and carried through an infringement procedure. While the EC had taken its first decision quickly, on 15 July 2021, it took a full year before the Commission announced that they would bring Hungary to the Court of Justice of the European Union (CJEU) over this legislation in particular.
Shortly after this announcement, Reclaim, a Brussels-based NGO that works to amplify the voices of European civil society in their struggle to promote democratic, just and inclusive societies at home and abroad, joined the partnership, bringing invaluable expertise in EU law to the table, and the preparation for the next steps began. Since the infringement procedure was not moving forward after the Commission’s announcement in July 2022, Forbidden Colours rang the alarm and informed the press, EU capitals and Members of the European Parliament about the dire situation the LGBTQI community in Hungary faced.
On 19 December 2022, the lawsuit against Hungary was finally filed with the CJEU. The key objective of our joint advocacy efforts was then to secure the intervention of as many EU Member States as possible. We strategically focused on the two most influential first, France and Germany, visiting both Paris and Berlin at the end of 2022, before the EC’s submission was filed.
After much anticipation, things started to move fast. We knew that once the outline of the petition was published (and Reclaim quickly confirmed the date with the CJEU), we would have just a few weeks’ time to mobilize all of the EU Member States to intervene in support of the EC.
Forbidden Colours decided to organize an EU-wide campaign through a petition allowing citizens to directly ask their Foreign Affairs Minister to join the lawsuit, while Reclaim and Háttér Society worked on the background materials. Reclaim prepared a fact sheet detailing the provisions of the law, the timeline of the CJEU’s procedure and the key dates for the Member States, while Háttér updated its report on the implementation of the anti-LGBTQI provisions. Both documents were shared with the relevant stakeholders in the Member States.
On 13 February 2023, the day the case was published in the official journal of the EU, Háttér Society, Reclaim, and Forbidden Colours held a joint press conference in Brussels to raise awareness about the lawsuit. We also launched a campaign that earned the support of more than 13,300 citizens across the EU. To achieve this result and to put pressure on the EU capitals, we secured the support of dozens of European, national, and local human rights and LGBTIQ+ organizations.
The CJEU’s rules of procedure leave a six-week window for Member States to express their intent to intervene in a pending case. After 13 February, 2023 we had to strategically prioritize and decide on which states to focus our efforts. We selected four EU countries from which we expected some hesitation, but also saw a fair chance of their joining the lawsuit: Slovenia, Czechia, Estonia, and Latvia.
Thanks to the support of the Heinrich Böll Foundation, our organizations were able to travel to Ljubljana, Prague, Tallinn and Riga to brief the cabinets of the relevant ministers, members of parliament and civil society organizations about the infringement procedure. The main reason for settling on the selected countries was that we wished to disrupt the Hungarian Government’s narrative about the controversy over the law, which boiled it down to a conflict between ‘ ‘East’ and ‘West’. In addition to these in-person visits, our package about the infringement procedure (the factsheet and the report on implementation) was communicated to all Member States, hybrid briefings were held for the representatives in Brussels, and all our personal contacts were mobilized.
All these efforts resulted in 15 EU Member States joining the lawsuit: Belgium, Luxembourg, The Netherlands, Portugal, Denmark, Austria, Malta, Spain, Ireland, Sweden, Finland, Slovenia, Greece, France, and Germany. The European Parliament also decided to intervene.
We believe that if France and Germany wouldn’t have waited with announcing their support until the last moment, it could have given some of the smaller member states an additional impulse to join the lawsuit as well. Nevertheless, securing the largest-ever number of intervening states is a huge success and we are proud to have contributed our part to it.
What will be next?
Our work has not ended with securing the largest-ever number of intervening states (15 and the European Parliament). While this is an unprecedented achievement, it is important to ensure that the Member States submit their written pleadings and, if possible, stress the points that are key to having the widest impact, i.e., that the CJEU’s ruling should leave no room for upholding any part of the legislation and that implementing the judgment will unequivocally lead to repealing the anti-LGBTQI law in Hungary.
To further aid the work of the Member States in preparing the written submissions on the case which are due on 15 September 2023, the project partners commissioned detailed research on practice related to Article 2 of the Treaty of the European Union. The EC’s pleading, based on Article 2, could potentially address issues not linked directly to EU competences ( which therefore cannot be challenged in an infringement procedure in principle), e.g., the anti-LGBTQI law’s devastating impact on education. Furthermore, online (and possibly also in-person) briefings will be organized for the representatives of Member States to provide updates on the implementation of the legislation.
The CJEU’s ruling is expected in the Summer of 2024.