European Union and 15 Member States challenge Hungary’s gay propaganda ban in court

The European Commission, the European Parliament and fifteen member states of the European Union are taking Hungary to the Court of Justice of the European Union (CJEU) for its 2021 ban on communication about LGBTQIA+ topics.

The fifteen are Belgium, the Netherlands, Luxembourg, Portugal, Denmark, Ireland, Austria, Malta, Spain, Sweden, Finland, Hungary’s neighbour Slovenia, France, Germany and Greece.

“A majority of EU member states has said enough to Viktor Orbán copy-pasting the Kremlin’s anti-LGBTIQ+ ideology. Europe has never been so united and determined on LGBTIQ+ rights. That’s what Orbán has achieved”,says Rémy Bonny, Executive Director of Forbidden Colours.

On June 15, 2021, the Hungarian Parliament voted in favor of an amendment to the law, known as the Propaganda Law, which bans the display and promotion of LGBTQIA+ issues, further demonizing LGBTQIA+ people.

Already when the bill was introduced in the Parliament, advocacy organizations strongly warned that the amendments will have a chilling effect on Hungarian society, as they will unjustifiably restrict access to LGBTQIA+ content.

“Violence against LGBTQIA+ people has increased since the adoption of the law censoring gay and transgender rights, and not only has LGBTQIA+ content disappeared from educational institutions, but sex education in general has become more difficult, as external experts and NGOs can only access schools with permission, while the ministerial decree on permission has not been adopted to date”, Hungarian LGBTQIA+ organisation Hátter Society says.

Human rights

In 2017, the European Court of Human Rights (ECHR) in Strasbourg already ruled that Russia‘s propaganda law is in violation of the European Convention on Human Rights: it violates Article 10 and 14 guaranteeing freedom of expression and non-discrimination, respectively.

In January 2023, the Grand Chamber of the ECHR confirmed that legislation that specifically restricts LGBTQIA+ content cannot be justified on the grounds of child protection, as it is against the best interests of the child. It is contrary to the spirit of the Convention to prevent minors from receiving objective, critical education on the diversity of sexual orientations and gender identities.

“The law and its guidelines are deliberately vague and unpredictable: teachers, child protection professionals and media service providers are thus likely to self-censor themselves to avoid violating the law’s ambiguous provisions. This is how LGBTQIA+ issues become taboo again in public discourse and everyday life”, Háttér says.

A year and a half after announcing the infringement proceeding, the CJEU published in February 2023 the European Commission’s petition. The submission, published in the Official Journal of the European Union, makes it clear that the amendments adopted by the Propaganda Act are contrary to a number of provisions in EU law, including several provisions of the Charter of Fundamental Rights.

Second-class citizens

“EU Member States had six weeks to join the infringement proceeding. The case pending before the European Court is not only about the Hungarian homophobic and transphobic law, but also about populism that violates human dignity and denies it to sexual and gender minorities. “No government of an EU Member State should treat LGBTQIA+ people as second-class citizens”, Hátter says

“The strong action of the European Commission sends a clear message to Member States: Hungarian PM Viktor Orbán‘s anti-LGBTQIA+ crusade cannot be allowed to spread in the European Union.”

Háttér Society and its allies – such as Forbidden Colours – organised a petition, which over 13.000 signed.

“By joining the infringement proceeding by providing ‘written observations’ to the CJEU case, they can make it clear that EU members are committed to the fundamental values that form the bedrock of our Union: human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.”

The petition was signed by Forbidden Colours, Háttér Society, Reclaim Europe and Budapest Pride.

Coalition

“This historic coalition of EU institutions and Member States sends a strong message to Viktor Orbán regarding the defense of our core values of equality, inclusion, and rule of law”, Forbidden Colours say in a press release.

“His Russian-inspired policies against the fundamental human rights of LGBTQIA+ people will not be tolerated in the EU. From Brussels to Valletta, Lisbon to Helsinki, The Hague to Ljubljana, Dublin to Athens, Orbán has been clearly told ‘Enough!’.”

Principled Benelux Member States lead the way

This resounding victory for the protection of the human rights of LGBTIQ+ people in the EU has highlighted a change of dynamics in Europe. “Today, the strongest allies of human rights defenders are to be found in the Benelux. Belgium, Luxembourg, and the Netherlands, joined the case in less than 48 hours.”

“On the other hand, the Franco-German motor has been sputtering when it came to defend the fundamental values of the EU and the human rights of its citizens. France and Germany waited till the very last hours of the 7 weeks window granted by the EU court to announce their support to the lawsuit. Seeing the two oldest and largest Member States of the EU not taking the lead in the defense of our most fundamental EU values of equality, inclusion, and respect of human dignity sends an alarming signal to all LGBTQIA++ communities in Europe”, Forbidden Colours say.

“This lack of leadership is a source of worry. First, because it has hindered the participation of additional Member States, such as Czechia, who expected the largest countries to pave the way. Second, because France and Germany’s commitment to EU fundamental values needs to be clear and strong at a time where so called ‘anti-gender’ and ‘anti-LGBTQIA+’ movements are spreading their hateful narratives in the Union.”

Italy

This threat is clearly demonstrated by the turnaround of Italy. In 2021, the progressive Italian government committed to support lawsuits regarding the rights of LGBTQIA+ people. Two years later, the government of Giorgia Meloni – a key figure of the anti-LGBTQIA+ movement in Europe – has refused to honor this commitment. Italy ends up being the only country that has clearly turned its back on LGBTQIA+ people by not joining the lawsuit.

The fall of the ‘pink curtain’

If Italy is the biggest dissappointment, the participation of Slovenia in the lawsuit deserves to be hailed as one of the greatest victories”, Forbidden Colours say.

“The progressive coalition now in power in Ljubljana joined the case whereas the former conservative government had made no commitment to do so in 2021. The participation of Slovenia demonstrates that what has been labelled as the ‘pink curtain’ is crumbling. This is strengthened by the declaration of the new coalition in power in Tallinn to introduce marriage equality in Estonia. We expect that the Estonian government to be invested Saturday 8 April will also join the lawsuit at a later stage.”

East v. West?

“With Slovenia and Estonia leading the way, the defense of the fundamental rights of LGBTQIA+ people is no longer following an ‘East/West divide’ as Viktor Orbán likes to portrait it. Viktor Orbán has made sure the EU stands more and more united in the defense of the human rights of its LGBTQIA+ citizens and more resilient against Kremlin’s attempts to destabilize Europe.”

“15 EU governments and the European Parliament have clearly understood the major threat posed to our most fundamental EU values by Viktor Orbán’s hateful policies. Building such a strong coalition is a great success for the more than 13.300 citizens and the dozens of LGBTQIA+ and human rights organisations that have supported Forbidden Colours and Reclaim in asking EU Member States to stand up against anti-LGBTQIA+ laws”, says Vincent Reillon, Outreach and Policy Officer at Forbidden Colours.

Next steps: a long way to the final ruling

The legal procedure at the EU court will now enter in its second phase. The participating Member States will receive the arguments from the European Commission and will have a few weeks to provide their own arguments in a written procedure. Based on the information collected, the judge rapporteur will draft a preliminary report. The EU court may then hold a hearing in the autumn 2023 and the Advocate General will provide their opinion. A final ruling is expected in summer 2024.

“The Commission’s decision to present Article 2 of the TEU as a free-standing plea represents a significant shift in protecting democracy and human dignity within Member States, especially for the LGTBQI+ community. I strongly urge all Member States, especially founding members, to reinforce the EU’s and their own countries’ resilience against autocratic shocks by firmly supporting this plea”, says Esther Martinez, Executive Director of Reclaim.

Hungary’s situation

Hungary scores only 30% on ILGA-Europe‘s Rainbow Europe Map & Index 2022. Number 1 on the list, Malta, scores 92%.

Queer people in Hungary face legal and social challenges not experienced by non-LGBT residents. Homosexuality is legal in Hungary for both men and women. Discrimination on the basis of sexual orientation and sex is banned in the country.

However, households headed by same-sex couples are not eligible for all of the same legal rights available to heterosexual married couples. Registered partnership for same-sex couples was legalised in 2009, but same-sex marriage remains banned.

The Hungarian government has passed legislation that restricts the civil rights of LGBT Hungarians – such as ending legal recognition of transgender Hungarians and and the propaganda ban.

Travel to Hungary?

Hungary shares the 84th spot on the Spartacus Gay Travel Index 2023 with Barbados, Botswana, Cabo Verde (or Cape Verde), Curaçao, El Salvador, Kosovo, Macau, Mongolia, Panama, Samoa and Ukraine.

For the casual gay traveller, Hungary is not really dangerous. Capital Budapest is a fairly open city where nightly (homophobic) violence is not more problematic than in other big cities. Politics and people in Budapest are more open-minded than in rural areas.

Yet being aware helps. Certainly when travelling in group, when travelling with your sale-sex partner or when being outspokenly and visibly queer.

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