EU Advocate General: Hungary’s clampdown on LGBT+ rights violates EU law

Brussels – Hungary’s position in the European Union is becoming increasingly complicated. In the spotlight for the most recent blows to the rule of law – including the ban on Budapest Pride and the law on foreign interference – Viktor Orbán’s government is now seeing increasingly explicit confirmation that it has violated EU law with the clampdown on the rights of the LGBT+ community passed as early as 2021.

It is the opinion of Tamara Ćapeta, Advocate General of the Court of Justice of the European Union, that the Court will consider when issuing its ruling closing the infringement proceeding that the European Commission started four years ago against Budapest. When Fidesz, the sovereignist and ultra-conservative party of the Hungarian Prime Minister, took several steps to ban or restrict access to content that portrayed or promoted “gender identities that do not correspond to the sex assigned at birth, sex change, or homosexuality.”

According to the EU Advocate General, the first von der Leyen Commission was right all along the line: Hungary violated the internal market rules for services, the General Data Protection Regulation, and several rights protected by the EU Charter of Fundamental Rights. The prohibition of discrimination based on sex, sexual orientation, respect for private and family life, freedom of expression and information, and the right to human dignity.

The justification of “protecting the healthy development of minors” is not sufficient. Not least because Hungarian law does not merely protect them from pornographic content but prohibits the depiction of the everyday life of LGBTQI+ people without providing any evidence of the potential risk it might pose. The Hungarian law places homosexuality, sex change, and divergence from the personal identity corresponding to the sex at birth on the same level as pornography. “Those amendments are based on a value judgment that homosexual and non-cisgender life is not of equal value or status as heterosexual and cisgender life,” the Advocate notes.

There is more: according to Ćapeta, the Court should also find – as requested by Brussels – a self-standing infringement of Article 2 of the Treaties, which enshrines the fundamental values on which the European project is based. Hungary has crossed the “red line” of equality, human dignity, and respect for human rights by marginalizing a group from society. And again, Budapest has “significantly deviated from the model of a constitutional democracy, reflected in Article 2” of the EU Treaty.

The Court of Justice is unlikely to depart from Ćapeta’s orientation that confirms all the instances presented by the European Commission. At that point, it could lead to new sanctions: it would not be the first condemnation of Orbán’s Hungary, on which, by the way, the European Parliament has already initiated, back in 2018, the procedure under Article 7 of the Treaty, aimed at determining the existence of serious and persistent breaches of EU values and imposing possible sanctions.