by Ana Cardoso (Master’s student in European Union Law at the School of Law of the University of Minho)
On 23 June 2021, the Hungarian President Jánus Áder promulgated a law which forbids schools and the media of “promoting or portraying” homosexuality or sex reassignment to minors and limits sexual education in schools. The abovementioned law was approved by the Hungarian Parliament on 15 June 2021 and initially started as a way of introducing heavier sanctions on sexual crimes against minors, boosted by the scandal that happened earlier in the year involving the Hungarian ambassador to Peru, Gábor Kaleta, who was found in possession of nearly 20,000 pornographic pictures of minors. However, on 9 June 2021 MPs from the ruling party, Fidesz, submitted last-minute amendments to the law which target sexual minorities, in practice linking homosexuality to paedophilia.
The law (including the last-minute amendments) forbids that any content featuring portrayals of homosexuality or sex reassignment be made available to minors, states that school sex educators can no longer “promote” homosexuality or sex reassignment and that sexual education classes can only be held by registered organisations, limiting more liberal NGOs, and finally puts restrictions upon ads with LGBTIQ content. President Áder maintains that this new law only aims to protect children and give their parents the rule over sexual education, and that it does not affect the right of adults to choose how they live their own lives, or the right to private life enshrined in the Hungarian Constitution. Furthermore, Prime Minister Viktor Órban has stated that the law passed and that it was final, showing no intention of backing down.
Not surprisingly, this move garnered criticism from activist organizations, political and governmental leaders, and EU Institutions alike. Dutch Prime Minister, Mark Rutte, has said that Hungary “has no business being in the European Union any more”. Luxembourg Prime Minister, Xavier Bettel, who is himself gay, has said that the Hungarian Government is wrong to conflate paedophilia with homosexuality, and condemned the idea that advertising has any influence on sexuality. The Commission’s President, Ursula von der Leyen, called the law “shameful”. Moreover, 13 EU countries have issued a joint statement of “grave concern” about this law, and later 17 EU leaders signed a letter ahead of the summit pledging to “continue fighting against discrimination of the LGBTIQ community, reaffirming our defence of their fundamental rights”. Portugal, however, has decided to maintain a neutral position on this matter, arguing the neutrality to which it is committed during its presidency of the Council. This position was highly contested in Portuguese civil society, as institutional neutrality should not cover base European values such as the protection of fundamental rights. Nonetheless, the country will sign the letter after the term of said presidency, on 1 July.
Another question we must ask is, how can Hungary’s position on this matter be compatible with the LGBTIQ Equality Strategy 2020-2025? The short answer: it is not. This Strategy addresses a long-term need to tackle the problems and inequalities that affect LGBTIQ people Union-wide, setting out a number of targeted actions, including legal and funding measures, across four pillars: targeting discrimination against LGBTIQ people, ensuring LGBTIQ people’s safety, building LGBTIQ inclusive societies, and leading the call for LGBTIQ equality around the world.
The Hungarian law is a clear indicator of the erosion of fundamental rights we’ve been seeing in some Member States, and in our opinion clearly goes against all four pillars of the Strategy. Comprehensive sexual education is extremely important to the healthy development of young people, empowering them to make informed decisions about relationships and sexuality and navigate a world where gender-based violence, gender inequality, early and unintended pregnancies, and sexually transmitted infections pose a serious risk to their health and well-being. Not giving them the tools to deal with these issues is not protecting them, quite the contrary. Furthermore, representation, be it in the media be it in educational platforms, is important to those who are dealing with questions concerning their gender or sexuality, and erasing them and their experience from the conversation can have a grave impact on their mental-health, ability to relate to other people, to prosper and fully participate in society.
We could argue also that contact with these issues from a young age has the potential to create a more understanding and inclusive society where the numbers of gender-based violence, specifically towards LGBTIQ people, can decrease exponentially. According to the report A long way to go for LGBTI equality by the European Union Agency for Fundamental Rights, 61% respondents always or often avoid simple displays of affection in public and 33% often or always avoid certain places for fear of being assaulted, threatened or harassed. Additionally, 43% of LGBTIQ people declared that they felt discriminated against in 2019, compared to 37% in 2012.
This law, in conjunction with the creation of “LGBT-free zones” by certain Member States early in the year, shows the emergence of a dangerous pattern. In accordance with the Strategy and the EU’s fundamental values we cannot allow Member States to commit to law initiatives which endanger the fundamental rights of LGBTIQ people. As Ursula von der Leyen explained at the joint press conference following the European Council, this is about people’s lives, their dignity, their feelings and their identity, as well as what we, as the European Union, believe in. As such it is a matter not to be taken lightly, and the Commission has “assessed this law thoroughly”, has written to the Hungarian government detailing its concerns, and now waits for the answer.
The Equality Strategy aims to not only protect, in a way that diversity is celebrated as part of our collective richness, where all people can be themselves without risk of discrimination, exclusion or violence, but also to elevate LGBTIQ voices by including them in the decision-making process and making them feel welcomed in wider society. Eliminating their experiences, but not only that, linking them to a serious crime, is fundamentally against this objective.
 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Union of Equality: LGBTIQ Equality Strategy 2020-2025, Brussels, 12.11.2020, COM(2020) 698 final, p. 3.
 European Commission, Press release “Union of Equality: The Commission presents its first-ever strategy on LGBTIQ equality in the EU”, 12.11.2020. Available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2068 [25.06.2021].
 FRA, “A long way to go for LGBTI equality”, Publications Office of the European Union, Luxemburg, 2020, p.18.
 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Union of Equality: LGBTIQ Equality Strategy 2020-2025, Brussels, 12.11.2020, COM(2020) 698 final, p. 2.
Picture credits: Tumisu