An unprecedented stand for LGBTQI rights: 15 member states join EU action on so-called “child protection” law

The European Commission referred the case to the Court of Justice of the European Union in December 2022 after 1.5 years of infringement proceedings. By the deadline of April 6, 2023, 15 member states and the European Parliament have joined the proceedings, which is unprecedented.

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 LGBTQI topics to minors, further demonizing LGBTQI people. Since the passage of the law censoring homosexuality and transgenderism, violence against LGBTQI people has increased and public discourse has deteriorated. Not only has LGBTQI content disappeared from educational institutions, but sex education in general has become more difficult, as external experts and NGOs are only allowed into schools with permission, and the ministerial decree on permission has not been adopted yet. The experience of the last year and a half has undoubtedly demonstrated that the chilling effect of the law cannot even be estimated, and that self-censorship out of fear of sanctions has reached every area of life.

On February 13, the Court of Justice of the European Union (CJEU) published the European Commission’s application. The submission, published in the Official Journal of the European Union, makes it clear that the amendments adopted by the Propaganda Law are contrary to EU law in a number of areas, including several provisions of the Charter of Fundamental Rights. EU Member States have had six weeks to join the CJEU proceedings. The intervention of the member states in cases before the CJEU is rare; so far, only in cases of a particularly high profile and emphatically important human rights issue has a member state intervened in support of a referral from the European Commission. The largest number of member states, 5 in total, intervened in the infringement proceedings against Poland for a disciplinary system that infringed the independence of judges and the rule of law. Three times as many member states support an EU action against the Hungarian Propaganda Law, and for the first time in history, the European Parliament has intervened.

This trial is not only about the Hungarian homophobic and transphobic law, but also about the populist attacks on human dignity and the incitement against sexual and gender minorities. No government of any member state should treat anyone as a second-class citizen, including LGBTQI people. The strong action by the European Commission and the intervening member states sends a clear message: Viktor Orbán’s anti-LGBTQI rampage must not be allowed to continue in the European Union. For the past month and a half, Hungarian advocacy group Hatter Society and its allies Forbidden Colours and Reclaim have been urging all EU member states to stand up for equality and LGBTQI people in Hungary. The large number of member states entering the infringement procedure makes it clear that the government is not in conflict only with a few Brussels bureaucrats, but there is broad support for the European Commission’s action.

It is important to stress, however, that the court’s decision is not affected by the number of member states that have intervened: the court must only consider the legal arguments put forward and make its decision on that basis. The fact that 15 member states are planning to intervene in the case also means that they may have additional legal arguments in support of the Commission’s application, which will have to be examined by the court.

“In 2021, 17 member states pledged to fight LGBTQI rights violations, including through legal action, in a declaration issued on the International Day against Homophobia and Transphobia, 13 of which have now followed through and have been joined by some that had not made such a pledge two years ago. This unprecedented stand can give hope to the LGBTQI community that the European Union will defend its values and that the repressive law will not be long-lived.” – said Eszter Polgári, Head of the Legal Programme at Hatter Society.

“For almost two years, we have been fighting against the law, which was disguised as ‘child protection’, hearing day after day about how it is failing young people. In the heart of Europe, a teacher should not have to buy a storybook from under the counter or worry whether they can talk about being gay or transgender if a pupil is teased at break time. We will continue to work to ensure that this inhumane law does not marginalize LGBTQI people within society and public discourse, and that we can live in a free and safe Hungary for all”, added Luca Dudits, spokesperson of the Hatter Society.

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