Ana Cardoso (PhD candidate & Master’s in European Union Law at the School of Law of University of Minho. FCT research scholarship holder – 2025.06747.BD.) and Gonçalo Martins de Matos (PhD candidate & Master’s in Judiciary Law at the School of Law of the University of Minho)
In March 2026, the Portuguese Parliament started a rollback of the protection of trans and intersex persons in the country, by repealing Law no. 38/2018 of the 7th of August,[1] and introducing several bills that – if approved – will mean a major regression on LGBTIQA+[2] people’s rights.[3] As we come out of Pride Month, we must ask if Portugal’s recent position is compatible with the foundational values of the EU and recent developments of the jurisprudence of the Court of Justice of the European Union (“CJEU”).
The potential rollback of rights being discussed in Portugal is not dissimilar from the Hungarian legislation that targeted LGBTIQA+ rights and which gave rise to the recently delivered Judgment C-769/22 Commission v. Hungary.[4] Following an infringement procedure filed against Hungary, the CJEU was called upon to rule on the conformity of that legislation with the fundamental values of the EU. Beyond the issues relating to the specific EU law provisions applicable, the main question underlying this infringement procedure was the consideration of a breach of Article 2 TEU as a self-standing ground for finding an infringement of EU law, i.e. granting justiciability to Article 2.[5]
The CJEU found that the values set out in Article 2 TEU “lay down legally binding horizontal obligations within the Union and define the very identity of the Union as a common legal order”,[6] which is why, considering the principle of mutual trust, no Member State is to exercise its powers in a way that would go against those values. These were accepted on a reciprocal basis by the Member States, have freely and voluntarily been subscribed, and mean an obligation of respect and promotion.[7] In that sense, the CJEU ruled that “Such stigmatisation and marginalisation, which is tantamount to establishing, maintaining or reinforcing the social ‘invisibility’ of some members of society, runs counter to the values of respect for human dignity, equality, and respect for human rights, including the rights of persons belonging to minorities, as referred to in Article 2 TEU”.[8]
In Portugal, the recently repealed Law no. 38/2018 aimed to respond to societal worries when it came to the protection of trans persons – specifically those of the LGBTIQA+ community – as well as follow the 2015 recommendations on this issue of the European Commissioner for Human Rights.[9] This law protected the right to self-determination and expression of sex/gender characteristics – as a corollary of the fundamental right to free personality development –, stating that all persons were free and equal in dignity and rights, and establishing a State-obligation to create the necessary conditions for the full and effective exercise of the right to self-determination.
It also allowed for minors, between the ages of 16 to 18 years-old, to legally change their name and sex in legal documents as long as they complied with some basic requirements: (i) the request had to be made by their legal guardians, (ii) there had to be a face-to-face hearing of the applicant to assess their express, free and informed consent, (iii) a medical or psychological report attesting exclusively to the minor’s express, free and informed consent, (iv) and the decision had to take into account the best interests of the minor.[10] This issue is at the centre of the discourse around the recent repeal.
Back in 2021, when Hungary introduced the legislation that led to the infringement procedure discussed above, Portugal was presiding over the Council, and decided to maintain a neutral position on the matter, arguing the need for institutional impartiality, something that was highly contested in Portuguese civil society – and some could argue, an early indication of the path now being followed –, as this was a question of the protection of fundamental rights.[11]
Currently, Law no. 7/2011 of the 15th of March is back in force, awaiting the approval of new legislation on the matter of the legal recognition of trans identities. At the time, this law had been a milestone in the history of trans rights in Portugal, creating the first legal procedure for changing sex and first name on the civil registry.[12] However, for today’s standards, it is not enough. First, Articles 2 and 3 require a diagnosis of “gender identity disorder” to make this change possible, leading to excessive medicalisation of trans identities. Secondly, it does not make any provisions when it comes to young people. These were some of the reasons at the basis of European Commissioner for Human Rights’ recommendations, which led to its substitution by Law no. 38/2018.
When it comes to the current state of things, the parties belonging to the coalition that currently forms the Portuguese government presented legislative proposals. On one hand, PSD argues for the reintroduction of the requirement for a mandatory medical report in order for a change of sex and name in the civil registry to happen. This report would need to include a diagnosis of “gender incongruence” and would be prepared by a specialised multidisciplinary clinical team and signed by at least one specialist doctor and psychologist. This from the age of 16, but before that age the requirement is a specialised medical evaluation and the informed and express consent of those holding parental responsibilities or legal guardianship.[13]
More conservatively, the other party in the coalition – CDS-PP – proposed a bill that prohibits puberty blockers and/or hormone therapy in the treatment of gender dysphoria before 18 years of age in order to “protect the integrity of children”, thus not truly recognising adolescents’ capacity to decide on issues relating to their own sexual or gender identity.[14]
The Chega party went further, by introducing new articles for the “protection of children and young people”, providing for a ban on the inclusion of gender ideology in program content in educational establishments for children under 18, determining that parents or legal guardians should be solely responsible for education in this field.[15]
In the Judgment C-769/22, the European Commission already contested this argument, namely in paragraphs 102 through 105. It did so specifically by arguing that the right of parents to oversee the education of their children and taking into account their religious and philosophical convictions as provided for in Article 14(3) of the Charter of Fundamental Rights of the European Union cannot be interpreted in a way that justifies Member States to adopt legislation that discriminates and jeopardises the right to free speech and the human dignity of third persons, including minors.[16]
Additionally, the use of the word “children” to refer to young people under 18-years-old does not seem to be happenstance. The Law no. 38/2018 provided allowances for what are truly adolescents, meaning young people old enough not only to understand but also to discuss complex issues in depth, including those of a medical nature; this has been the general experience of healthcare professionals. It does not seem erroneous for this to apply to sexual health care and the legal change of identification documents, provided the adolescent shows capacity.[17]
These proposals are now under analysis at the Comissão de Assuntos Constitucionais, Direitos, Liberdades e Garantias, the body responsible for debating and overseeing matters related to, amongst others, the interpretation of the Constitution and fundamental rights.[18]
Although PSD and Chega consider the 2011 system “balanced”, several organisations advocating for transgender and intersex people have challenged the proposals, which they describe as a step backwards, and opinions from clinicians that the projects in question constitute a setback and are not based on substantiated scientific evidence are unanimous.[19]
If the proposed changes are adopted by the Portuguese parliament, the resulting legal regime will have effectively backslid to an inferior level of fundamental rights protection than the current one. That alone would be enough to trigger an infringement procedure based on the breach of the principle of non-discrimination and of the principle of the highest level of protection, established respectively in Articles 21 and 53 of the Charter of Fundamental Rights of the EU. However, taking into account what we have learned from the analysis of Judgment C-769/22 Commission v. Hungary, the discrimination posed by the legislative proposals in question are also in breach of the fundamental values of the EU enshrined in Article 2 TEU.
The obvious and inevitable consequence of adopting restrictive legislation in matters of fundamental rights, focusing on the rights of sexual and/or gender minorities, is the finding of a breach of the EU’s fundamental values and, consequently, being subject to an infringement procedure similar in nature to the one analysed above.[20]
Nevertheless, irrespective of what will be the European Commission’s decision once this rollback is solidified, the high-level of protection of LGBTIQA+ rights in the EU that often led authors to call it “rainbow Europe”[21] is under threat.
[1] SIC Notícias and Lusa, “Parlamento debate identidade de género: Chega, PSD e CDS querem revogar ou alterar legislação”, SIC Notícias, March 19, 2026, accessed March 30, 2026, https://sicnoticias.pt/pais/politica/2026-03-19-parlamento-debate-identidade-de-genero-chega-psd-e-cds-querem-revogar-ou-alterar-legislacao-121fb6c0.
[2] The “LGBTIQA+” terminology used in this post is controversial, with other designations used by authors and institutions. Here we follow the one adopted by the European Commission and accepted by society at large; but even at the EU level other terminology has been used: in 2015 the term LGBT was utilised, in 2020 it changed to the term LGBTI, in 2021 LGBTIQ appeared in official documents, and more recently LGBTIQA+ was embraced.
[3] IGLYO, “Portugal: Don’t roll back trans and intersex rights”, March 18, 2026, accessed March 31, 2026, https://www.iglyo.org/news/portugal-dont-roll-back-trans-and-intersex-rights.
[4] Judgment CJEU European Commission v. Hungary, 21 April 2026, Case C-769/22, ECLI:EU:C:2026:326.
[5] Gonçalo Martins de Matos, “Glimpsing the tunnel exit: the justiciability of Article 2 TEU and the future of the European Union”, UNIO EU Law Journal – The Official Blog, 3 April 2026, accessed 7 July 2026, https://officialblogofunio.com/2026/04/03/glimpsing-the-tunnel-exit-the-justiciability-of-article-2-teu-and-the-future-of-the-european-union/.
[6] Judgment Commission v. Hungary (C-769/22), recital 546.
[7] Judgment Commission v. Hungary (C-769/22), recital 549.
[8] Judgment Commission v. Hungary (C-769/22), recital 555.
[9] Assembleia da República, Comissão de Assuntos Constitucionais, Direitos, Liberdades e Garantias, “Parecer do Projeto de Lei n.º 242/XIII/1.ª (BE)”, June 29, 2016, 2.
[10] Ana Cardoso, «The protection of LGBTIQ people in the European Union. The difference between “sex” and “gender” – its merits and shortfalls» (Masters diss., University of Minho, 2023): 75-78.
[11] Ana Cardoso, “The Hungary question: how are the rights of LGBTIQ people in the EU?”, UNIO EU Law Journal – The Official Blog, June 28, 2021, accessed March 30, 2026, https://officialblogofunio.com/2021/06/28/the-hungary-question-how-are-the-rights-of-lgbtiq-people-in-the-eu/.
[12] Assembleia da República, Lei n.º 7/2011, de 15 de março, accessed June 25, 2026, https://diariodarepublica.pt/dr/detalhe/lei/7-2011-278187.
[13] Grupo Parlamentar Partido Social Democrata, Projeto de lei n.º 486/XVII/1ª que altera o regime jurídico de mudança de sexo e de nome próprio no registo civil, March 06, 2026, accessed June 03, 2026, https://www.parlamento.pt/ActividadeParlamentar/Paginas/DetalheIniciativa.aspx?BID=356298.
[14] Grupo Parlamentar do CDS-PP, Projeto de Lei N.º 479/XVII/1ª que protege a integridade das crianças e proíbe a utilização de bloqueadores da puberdade e/ou terapia hormonal no tratamento da incongruência ou disforia de género em menores de 18 anos, March 05, 2026, accessed June 03, 2026, https://www.parlamento.pt/ActividadeParlamentar/Paginas/DetalheIniciativa.aspx?BID=356287.
[15] Grupo Parlamentar do Chega, Projeto de Lei n.º 391/XVII/1.ª que actualiza a regulação do procedimento de mudança de sexo e de nome próprio no registo civil, em particular no que diz respeito à protecção das crianças e jovens, à luz da evidência científica mais recente e em consonância com os princípios da bioética e da dignidade da pessoa humana, January 21, 2026, accessed June 03, 2026, https://www.parlamento.pt/ActividadeParlamentar/Paginas/DetalheIniciativa.aspx?BID=346025.
[16] Judgment Commission v. Hungary (C-769/22), recitals 102-105.
[17] Katherine Romero and Rebecca Reingold, “Advancing adolescent capacity to consent to transgender-related health care in Colombia and the USA”, Reproductive Health Matters, v. 21, no. 41 (2013): 186-187 and 189.
[18] Assembleia da República, “Comissão de Assuntos Constitucionais, Direitos, Liberdades e Garantias”, accessed June 25, 2026, https://www.parlamento.pt/sites/COM/XVIILeg/1CACDLG/Apresentacao/Paginas/default.aspx.
[19] Joana Mourão Carvalho, “Parlamento aprova reintrodução da obrigatoriedade de validação médica para a mudança de género”, euronews, March 20, 2026, accessed Jue 25, 2026, https://pt.euronews.com/2026/03/20/parlamento-aprova-reintroducao-da-obrigatoriedade-de-validacao-medica-para-a-mudanca-de-ge. Fernada Câncio, “Identidade de Género: PSD quer de volta a lei “inaceitável” de 2011 que Cavaco vetou”, Diário de Notícias, March 19, 2026, accessed June 25, 2026, https://www.dn.pt/política/identidade-de-gnero-psd-quer-de-volta-a-lei-inaceitvel-de-2011-que-cavaco-vetou.
[20] For more on these consequences, see Gonçalo Martins de Matos, “Defending the Rule of Law in the European Union: the role of the infringement procedure”, UNIO – EU Law Journal, Vol. 12, No. 1 (2026), https://doi.org/10.21814/unio.12.1.7524, 96-110.
[21] Philip M. Ayoub, David Paternotte, “Europe and LGBT Rights: A Conflicted Relationship”, The Oxford Handbook of Global LGBT and Sexual Diversity Politics (2019): 2.
Picture credit: by Artem Kulinych on pexels.com.
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