Top EU court urged to rule against Hungary’s anti-LGBTQ+ law

The European Union’s highest court has been asked to determine that Hungary has violated EU laws and fundamental rights with the legislation Budapest passed making LGBTQ+ content unavailable to minors under 18.

In a non-binding opinion, European Court of Justice Advocate General Tamara Capeta argued that legislative changes adopted by Hungary’s right-wing populist government are contrary to EU-protected rights such as the prohibition of discrimination on grounds of sex and sexual orientation, respect for private and family life, freedom of expression and information, “as well as the right to human dignity.”

The 2021 legislation adopted by Prime Minister Viktor Orbán‘s ruling Fidesz party banned the display of content to minors depicting homosexuality or gender change. It also introduced tougher penalties for crimes of pedophilia.

The Hungarian government maintains that its policies, including a more recent law and constitutional amendment that effectively banned the popular Budapest Pride event, are designed to protect children from what it terms “sexual propaganda.” However, critics have compared the legislation to Russia’s gay propaganda law of 2013, while claiming that it conflates homosexuality with pedophilia in a campaign ploy aimed at mobilising the Fidesz party’s conservative voter base.

Capeta rejected Hungary’s insistence that the cited measures are aimed at protecting children, arguing that the legislation “prohibits portrayal of ordinary lives of LGBTI people, and is not limited to shielding minors from pornographic content, which was prohibited by the law in Hungary already.” She also pointed out that the Budapest authorities have not offered any proof that content portraying the ordinary lives of LGBTQ+ people has a negative effect on the healthy development of minors.

Accordingly, the Advocate General concluded, “those amendments are based on a value judgment that homosexual and non-cisgender life is not of equal value or status” to heterosexual life. Capeta urged the court to rule in favour of the EU executive commission on all counts, noting that the executive had launched an infringement procedure against Hungary shortly after the law was first passed. 

Advocate general opinions are not invariably followed by the European Court of Justice. In this case, a final ruling is not expected until a later date.