All Eyes on hungary: The Discriminatory Transgender Rights Bill

INTRODUCTION

Amidst the COVID -19 pandemic, Hungary caught the whole world off guard by passing a bill that ends legal recognition for transgender people. In May 2020, the Hungarian parliament passed the T/9934-Amendment Bill, amending Act 1 of 2010 on civil registration procedure. The act provides the method for registration and certification of ‘births, deaths and marriages’ on the basis of an individual’s gender. Article 44(3) of the act requires registration of names on the basis of one’s gender. Now, Article 33 of the recent amendment has replaced the term “gender” with “birth sex”. It requires registration of a person’s “biological sex or sex assigned at birth” in the national registry of ‘births, deaths and marriages’, which cannot be changed to express an individual’s self- identified gender. This means that identification documents would contain the same, inflexible information, preventing transgender people from registering their names and obtaining relevant documents in consonance with their gender identity. There was a lot of hue and cry when the bill was proposed but it didn’t prevent the parliament from passing it. The actions of the Hungarian parliament reflect a blatant disregard for human rights. Article 33 demolishes the freedom of an individual to change his/ her legal gender. The article intends to analyze how the amendment violates the rights of transgender people.

VIOLATING THE RIGHTS OF TRANSGENDER PEOPLE

The T/9934-Amendment Bill affects various rights which have enjoyed legal protection for decades. The right to legal gender identification is one of the rights that have been affected by the amendment bill. It protects an individual’s right to official recognition of their gender identity in national registries and major legal documents. The European Court of Human Rights has protected the right to legal gender identification in several instances. Prior to the new restricting legislation, Hungary allowed people to achieve legal gender identification.

Article 8 of the European Convention on Human Rights (ECHR) ensures that every person has the right to respect for “private and family life”. In B v. France, the European Court of Human Rights held that the term “private life” under Article 8 of ECHR includes the right to gender-identification, as it is one of the most intimate aspects of an individual’s private life.  Later, in the case of Christine Goodwin v. United Kingdom, the European Court of Human Rights held that denial of the state to alter a person’s gender in the birth-certificate registry, or failure to provide legal recognition to such alteration, violates Article 8 i.e. “right to respect for private and family life”. The recent amendment in Hungary does not legally recognize changes in an individual’s gender-identity; hence, it violates Article 8 of the European Convention on Human Rights.

Article 14 of the ECHR secures enjoyment of the rights and freedoms from any discrimination. It prohibits discrimination on any grounds like sex, race, birth or “any other status”. In the case of PV v. Spain, the European Court of Human Rights held that gender identity, falls under “any other status” as mentioned in Article 14 of ECHR. Therefore, it is a ground for Non-discrimination. Further, the European Court of Human Rights, in a case, held that all gender identities are equally protected against any form of discrimination. However, the recent amendment fails to protect the gender identity of people belonging to the trans-community. The amendment not only discriminates against a group of people solely on the grounds of their gender identity or sexual orientations but also violates Article 8 and Article 14 of the European Convention on Human Rights. The amendment only preserves the rights of cis-gendered people and is completely ignorant towards those who don’t identify with the sex assigned to them at birth (transgender people).

 Apart from the European Convention on Human Rights, the Constitution of Hungary also guarantees the right to human dignity (Article II). In 2018, the Constitutional Court of Hungary held that the right to human dignity includes the right to have a name and change it based on one’s self-perceived gender identity. The amendment violates Article II of the Hungarian constitution as it limits legal recognition to one’s biological sex and fails to provide any measure to change the name based on an individual’s self-perceived gender identity. Article 8 of the Equal Treatment and the Promotion of Equal Opportunities Act, 2003 prohibits discrimination on the basis of one’s gender identity or sexual orientation. Ironically, the new legislation clearly discriminates against people solely on the basis of their gender identity.

The government of Hungary justified the amendment on the basis that a complete alteration in ‘biological-sex’ is not possible. The government further defended the new legislation by saying that it doesn’t affect the right to freely express one’s gender identity. The law’s lone dependence on an individual’s chromosomes for recording gender identity is an antiquated approach. The birth- assigned sex should not be given priority oven an individual’s self-perceived gender identity.

CURRENT SCENARIO

In November 2020, the Miskolc Regional Court ruled that the law violates the rights to human dignity and private life. The Hungarian Court has requested constitutional review of the law. The constitutional court of Hungary has 90 days to decide the constitutionality of the law.

Making the current situation worse, the Hungarian Government, in November 2020, proposed an amendment to the constitution to restrict the right to adoption to married couples. The proposed amendment excludes same-sex couples, single individuals, and unmarried couples from adopting children. If passed, the bill would have grave repercussions for the entire population of the nation including the LGBTQ+ community. Such amendments are a reflection of the Hungarian government’s absolute disregard towards an entire community. The LGBTQ+ community is already a victim of several hate crimes and has suffered a lot. The law along with the recent proposed amendment has the potential to increase such incidents in the future. It is safe to say that the T/9934 amendment bill was just the beginning. The Hungarian government is proposing various amendments which will have an adverse impact on the LGBTQ+ community.

CONCLUSION

Transgender people are often subject to discrimination. After the coming of this new legislation, attacks and hate crimes against transgender and intersex people might further intensify. According to a survey, transgender people are twice as likely to experience discrimination at workplaces. The legislation not only fails to preserve the rights of transgender people but also to provide a solution for the individuals who are undergoing sex reassignment surgery. A survey revealed that more than 90% of the respondents believe that the Hungarian government is not effective in combating biases against the LGBT+ community. It is the duty of the government to ensure that basic rights of individuals are secure and not violated by any discriminatory legislation. The new legislation has created a fear of intensified discrimination in the minds of the transgender people. The amendment creates various barriers in accessing opportunities and services which would in turn prevent an individual from exercising his rights freely. The amendment is an abhorrent violation of human right. A law should be inclusive. It should not neglect a group of people who are already facing discrimination and are victims of several attacks and hate crimes.

The opinions/analysis expressed in this blog are those of the author. They do not purport to reflect the opinions or views of the SCLHR or its members.

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