In a dark demonstration of Orwellian precepts, Hungary’s Parliament has passed a bill to end legal recognition for transgender citizens. The Bill received the legislative acquiescence on 19th May 2020. The legislature has cogently replaced the Hungarian word ‘nem’ which can mean both sex or gender with the term ‘születési nem’ which refers to sex assigned at birth. The law in effect designates an individual’s sex only on the basis of biological chromosomes. An individual’s sex is then deemed to be immutable and not subject to future change.
This will put the transgender community and individuals not identifying with their biologically determined sex at a loss. The government’s refusal to consider identities not based on biological characteristics is in clear conflict with Article XV of Hungary’s Constitution which guarantees non-discrimination on the basis of sex. Multiple jurisdictions have started to recognize the requisite of giving legal acceptance to the third gender. In National Legal Services Authority v. Union of India, Radhakrishnan, J of the Indian Supreme court held that both gender and biological attributes constitute distinct components of sex, and the expression ‘sex’ is not limited to the biological sex of male or female, but intended to include people who consider themselves to be neither male or female.
Historically, the EU has been proactive in asserting the rights of the trans community. The European Parliament in 1989 had adopted a resolution on discrimination against transsexuals. It had called upon Member States to pass legislation in harmonization of the resolution. In pursuance of that, Hungary had enacted the Equal Treatment and the Promotion of Equal Opportunities Act, 2003. Article 8 of the act succinctly provides for the concept of ‘negative discrimination’ which entails that a person or group is treated unfavorably on grounds such as sexual identity and orientation. While the act is oriented at preventing such discrimination; the new law rather ironically disperses its intentions.
Transphobic hate crimes are not uncommon in Hungary. Out of the LGBTQIA+ community, trans people are twice as likely to report experiencing discrimination at work. Harassment of trans students due to their gender expression not matching up with their physical presentation is routinely prevalent. The new law fails to provide a solution to individuals undergoing gender reassignment procedures. The explanation accompanying the amendment mentions: “as complete change of biological sex is not possible, there is no permissibility to change it in the registry of births, marriages and deaths, either.” In contrast, the High Court of Kuala Lumpur in Re JG while considering an application to amend gender status in the national registry, noted that apart from the medical aspect of gender reassignment; the ‘psychological’ aspect of the individual who feels and behaves separately from predetermined biological characteristics also merits weight.
The government has defended the law by claiming that it “does not affect men’s and women’s right to freely exercise their identities.” The government’s inadequacy in giving recognition to non-traditional notions of gender has faced condemnation beyond Hungarian borders. 63 members of the European Parliament have expressed grave concerns about the bill in a letter to the Hungarian Prime Minister’s Office. The Council of Europe’s Commissioner for Human Rights while criticizing the bill also drew renewed attention to the decision of the European Court of Human Rights in Christine Goodwin v. the United Kingdom. The Court had in the decision condemned the indignity faced by individuals following gender reassignment surgery, thereby setting a benchmark for subsequent jurisprudence.
The legislature has clearly stumbled in pursuing the bill which has been likened to a step back into the dark ages. The untrammeled requisite for Hungary’s Constitutional Court to review the bill is indisputable. Regardless, there is an incessant need for a build-up of international pressure to invalidate the wanton mortification imposed on an already suppressed community.
Amogh Sharma is a B.A. LL.B. (Hons.) student at Hidayatullah National Law University Raipur, India. He takes keen interest in contemporary developments in the field of International Law.
Suggested citation: Amogh Sharma, The Orwellian Fiasco of Hungary’s Reversal of Recognition for Transgender People, JURIST – Student Commentary, June 9, 2020, https://www.jurist.org/commentary/2020/06/amogh-sharma-hungary-transgender-rights-reversal/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
