Prejudice in Pride: Hungary’s “Pedophilia” Legislation Violates Human Rights of Queer Community
By Sarthak Gupta
During June, in the middle of Pride Month, the Hungarian Parliament passed discriminatory legislation under the guise of protecting against “pedophilia”.
The Prejudiced “Pedophilia Act”
The “Pedophilia Act” begins with the “right of children” to an identity in accordance with their sex at birth, which is analogous to Article 33 of the 2020 omnibus bill, a bill which substitutes “birth sex” for “gender” in official papers, thereby rendering gender recognition for trans persons impossible. In addition, the “Pedophilia Act” incorporates certain provisions that are blatantly homophobic and transphobic. The restraints include a prohibition against “exposing children to any information that shows sexuality for its own purpose or represents and encourages homosexuality or deviation from gender identification based on birth sex,” which includes marketing, education, and other media content. Furthermore, any school programs relating to sex education must be done by state-authorized organizations, which is unlikely to include any LGBTQIA+ or feminist organizations.
Nonetheless, the legislation makes no distinction between what constitutes a "portrayal" of homosexuality or sex confirmation. It is unclear which media are covered by this newly established prohibition. Furthermore, the legislation also forbids advertising that contains information concerning queer sexual orientation. This may imply that corporations with advertising campaigns that promote Queer individuals and encourage mutual acceptance among all are expressly forbidden from being displayed to the wider public.
The prima facie intent of the “Pedophilia Act” was to strengthen punishments for child abuse, however, the amendments conflate pedophilia and homosexuality. And the substantial rationale given for passing such legislation by the Hungarian government is to ensure that children’s ethical and “mental growth is safeguarded.” These restrictions will have the consequence of altogether eliminating queer voices from mainstream discussion, depriving them of the opportunity to advocate for equality. Furthermore, the Act aims to make the LGBTQIA+ population invisible to minors by prohibiting the representation of homosexuality to minors. This lack of representation weakens the LGBTQIA+ community’s standing in the society.
Illegitimacy of Prejudice Under Law
The proposed prohibition is in violation of European Union Law on the notion of non-discrimination based on sexual orientation, explicitly enshrined in Article 21 of the legally obligatory EU Charter of Fundamental Rights. It further violates Article 1 of Protocol No. 12, the right against discrimination, which is enshrined in of the European Convention on Human Rights (ECHR). The rationale of Salgueiro da Silva Mouta v. Portugal, under Article 14 of the ECHR, states that individuals are entitled to their fundamental rights under the Convention without any discrimination on the criteria of the stipulated rationale[s], which inter alia include “sexual orientation.” The European Court of Human Rights (ECtHR) in Alekseyev v. Russia, clearly states that there is no scientific evidence to support the assumption that the sheer suggestion of homosexuality has a detrimental influence on children. The freedom to have thoughts and acquire information without intrusion from a public institution is an essential element of Article 11 of the Charter of Fundamental Rights. The proposed legislation puts Queer youth's rights into question, as without appropriate knowledge of different sexual orientations, the heteronormative narrative will cement itself in the consciousness of these young people, who will assume it is “right” to stay “unidentified.”
The “Pedophilia law” further incorporates regulations into the Child Protection Act, the Act on Business Advertising Activity, the Media Act, the Family Protection Act, and the Public Education Act, which would impose administrative punitive measures on licensed professionals or institutions who contravene the polemic Act.
The right to seek and receive information and ideas of all forms are incorporated in the right to freedom of speech under Article 10 of the ECHR. Hungary was obligated to establish the right to freedom of expression per Article 10. The Council of Europe's Committee of Ministers has observed that the right to seek and receive information comprises “information on subjects dealing with sexual orientation and gender identity.” The Convention on the Rights of the Child under Article 17 mandates State parties to guarantee children's “access to information and materials from a variety of national and international sources,” in consideration of their distinctive need for awareness.
Free and equitable public dialogue regarding homosexuality strengthens social and cultural cohesiveness by assuring that all views are recognized regardless of sexual orientation. The ECtHR recognizes the obligation of member states to encourage such diversity as a gear in the democratic wheel in Bączkowski and Others v. Poland.
According to the EU Audiovisual Media Services Directive, such diversification must also be encouraged through the media. In its reports, the Special Rapporteur on the promotion and protection of freedom of opinion and expression mentioned that the right to freedom of expression of LGBTQIA+ individuals under Article 19 of the UDHR, to which Hungary is a party, is hamstrung because concerns pertaining to homosexuality have never been simulcast on mainstream television. Therefore, Hungary fails to uphold its obligations as a member state by passing this law that condemns homosexuals.
The UN Human Rights Committee, in Toonen v. Australia, asserted that in a democratic and diversified society, the principle of freedom of speech and expression incorporates even minority viewpoints that may shock or offend the public. While the Committee's judgments are not constitutionally obligatory on the member state, still, they must be perceived in good conscience. Indeed, it would be incompatible with the ECHR's fundamental objectives if a minority group's practice of rights could only be permitted if the majority approved.
Hungary’s Anti-LGBTQIA+ Record
The proposed legislation is the most recent in Prime Minister Viktor Orban's government's spate of blows on LGBTQIA+ fundamental rights. In May 2020, the government put forward an omnibus bill that includes provisions prohibiting transgender and intersex individuals from altering their preferred name on legal documents, which is in violation of their ECHR obligations. However, the ECtHR in Rana vs Hungary ruled that Hungary had violated its obligations under the ECHR to safeguard transgender people's private activities and ruled that there ought to be a framework to have their gender identification acknowledged legally.
Furthermore, in December 2020, parliament passed a constitutional amendment explicitly prohibiting same-sex couples from adopting children. The Hungarian government’s stigmatization of homosexuality by associating it with pedophilia is particularly egregious considering an assertion made by the Speaker of the Hungarian Parliament's Lower House in 2019: “There is no moral difference between such a pedophile and homosexuals who want to adopt. A child is an object, a luxury item, a tool for self-realization and fulfillment in both cases.”
The ECtHR ruled in the case of Bączkowski and Others v. Poland that the mayor's significant personal beliefs stated publicly might have a significant effect on the authorities' anti-LGBTQIA+ measures. Thus, beneath the guise of “children safety,” there is a blatant attempt to further stigmatize the existing marginalized community. Moreover, the new regulations intend to target any discourse of diversity and emanates in part as a backlash against initiatives by artists and advertisers to encourage inclusiveness and appreciation of sexual and gender minorities.
On January 19, 2021, the Hungarian Consumer Protection Authority compelled the publisher of a children's book representing LGBTQIA+ individuals to add a disclosure indicating that the book depicts forms of “behaviour deviating from traditional gender norms.” This contributes to restricting the right to freedom of speech and the right to non-discrimination as entrenched in Articles 11 and 21 of the EU Charter of Fundamental Rights, respectively, and violates the Unfair Commercial Practices Directive.
Conclusion
In November 2020, the European Commission released the LGBTQIA+ Equality Strategy, the first-ever Commission strategy on LGBTQIA+ equality, which reflects the Commission's commitment to constructing an Equality Union. It intends to establish a Union in which diversity is acknowledged as part of our collective wealth, and in which all individuals may be themselves without fear of discrimination, exclusion, or violence. The Commission’s President, Ursula von der Leyen, and German Chancellor Angela Merkel, in their critique, contended that the bill was discriminatory. The UN Office of the High Commissioner for Human Rights (OHCHR) has also condemned Hungary's proposed new law, as it “denies trans and gender diverse individuals the right to legal recognition and self-determination.”
The Commission, taking into consideration violations of human rights, initiated infringement procedures against Hungary’s “Pedophilia Act”. However, President Orban dismissed the Commission’s infringement procedure as legal hooliganism. Since the Hungarian government has two months to answer to the Commission's findings, the members of Hungary's parliament should repudiate this blatant attempt to silence marginalized communities and instead ratchet up their commitment to safeguarding everyone's fundamental human rights, including LGBTQIA+ individuals. Otherwise, the Commission may choose to issue them a rational argument and, as a forward step, bring them to the European Union's Court of Justice.
Sarthak Gupta is an undergraduate law student [B.A.; L.L.B] at the Institute of Law, Nirma University, India. His scholastic interest follows Constitutional Law, Human Rights & Gender Studies, and International Law.
Photo is by European People's Party and is licensed under CC BY-NC 2.0.
