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Top European Court deals major blow to Hungary’s anti-trans law

Top European Court deals major blow to Hungary’s anti-trans law

  • Hungary has passed a cruel new law stopping trans people from gaining legal recognition – but a new court judgment may defeat it.
European Court of Human Rights in Strasbourg.

The European Court of Human Rights has told Hungary it must allow trans people to change their legal gender.

The ruling comes just six weeks after Hungary passed its cruel new anti-trans law. The law – Article 33 – stops transgender people from changing their legal gender. As a result, it effectively makes Hungarian trans people legally invisible.

The case in question at the European court was about a Iranian refugee in Hungary – so specifically covered foreign citizens living in the country.

The court unanimously ruled that Hungary violated Article 8 of the European Convention on Human Rights by failing to recognize the Iranian trans man’s true gender. Article 8 states that everyone has the right to respect for his private and family life.

The court didn’t specifically tackle Article 33. However the logic of the judgement will almost certainly apply to Hungarian citizens as well as refugees living in Hungary. As such, it is a potentially fatal blow to Hungary’s anti-trans law.

The Hungarian authorities likely now face the choice of repealing their new Article 33 themselves or facing repeated defeat in the European Court of Human Rights.

Already 23 trans people – who Hungary failed to register before the Article 33 – have cases pending at the Strasbourg court.

Meanwhile campaigners are already taking Article 33 to Hungary’s own Constitutional Court. Moreover another 40 trans people are ready to take cases to Strasbourg over Article 33.

How a trans man from Iran won a landmark judgment

Yesterday’s European Court of Human Rights case began five years ago.

During the summer of 2015, a transgender man arrived to Hungary from Iran and submitted a request for asylum.

The Hungarian authorities accepted Iran had persecuted him for being transgender. They therefore recognized him as a refugee.

However, his identity documents however still referred to him as a woman. Therefore he asked Hungary to update the documents to reflect his gender identity.

But the authorities refused, saying they didn’t have jurisdiction in his case. Instead they told him to submit the request in Iran, despite the fact he had fled that country because of his gender identity.

LGBT+ organization Háttér Society helped the man take his case to the Constitutional Court. In 2018 that court ruled that Hungary’s law was unconstitutional because it didn’t allow trans foreigners living permanently in the country to change their legal gender and name.

The Constitutional Court gave the government until 31 December 2018 to legislate but the government failed to act.

Meanwhile the Háttér Society helped the Iranian also take his case to the European Court of Human Rights.

Now the court has ruled the Hungarian government was wrong. Moreover, it has even ordered Hungary to pay the man €6,500 ($7,409) compensation and €1,500 ($1,710) court costs.

Hungarian authorities were ‘extremely cynical’

Tamás Dombos from the Háttér Society said the Hungarian authorities had been ‘extremely cynical’ in the Iranian man’s case.

‘On one hand, they recognized that the man’s life was in danger, and thus granted him asylum. On the other hand, they would have sent him right back to the country where he had been persecuted to change his documentation.

‘It is even more cynical that instead of following the ruling of Constitutional Court and allowing legal gender recognition for refugees, the government decided to make the lives of all transgender persons residing in Hungary more difficult by doing away with the system of legal gender recognition that has worked smoothly for the most part of the last  20 years.’

What Hungary’s anti-trans law says and how it passed

That legal change – Article 33 – came as part of an omnibus bill the government announced on 31 March.

LGBT+ campaigners immediately criticized Hungarian Deputy Prime Minister Zsolt Semjén – who filed bill – for doing so on International Transgender Visibility Day.

Moreover, organizations around the world accused Hungary of taking advantage of coronavirus – while protest was harder – to pass the legislation.

Article 33 amends the Registry Act and replaces the word ‘nem’, which in Hungarian can mean both ‘sex’ and ‘gender’, with the word ‘születési nem’ or ‘birth sex’. Furthermore it defines it as ‘biological sex based on primary sex characteristics and chromosomes’.

According to the bill, the birth sex, once recorded, cannot be amended. The cruel law doesn’t just hurt individuals but also makes trans people legally invisible in Hungary.

Hungary’s Parliament passed the bill on 19 May by 133 to 57 votes. Prime Minister Viktor Orbán’s Fidesz party enjoys a two-thirds majority, enough to push the new law through, in spite of opposition from other parties.

Opposition parties submitted several amendments. But the Fidesz-KDNP majority voted them down one by one.

Article 33 passed despite vigorous opposition from around the world. The European Parliament, UN High Commissioner for Human Rights and multiple campaign groups have all criticized Hungary for the move.

Legal challenges for Article 33 under way

However Article 33 may not even make it as far as the European Court of Human Rights.

Hungarian campaign organization Transvanilla is already taking the case of two trans people to the Constitutional Court to win the right for them to change their legal gender.

The organization announced the move shortly after Article 33 passed.

Campaigners have indicated they want to use the domestic legal process to strike down Article 33. However they will take cases to the European Court of Human Rights in Strasbourg if that fails to make the government act.

States must make legal gender recognition possible

Naturally, LGBT+ campaigners in Hungary have welcomed yesterday’s judgement.

Barnabás Hidasi, president of Transvanilla, said

‘This judgement is timely for the European trans community and reassures what the court had previously made clear: legal gender recognition has to be possible in states.

‘Now the court confirmed it has to be accessible also for refugees. We trust the Hungarian government will introduce a recognition procedure again in compliance with today’s decision.’

TGEU policy officer Jonas Hamm added:

‘This judgement sends a strong message to one of the most marginalised groups within the European trans community but also European stakeholders.

‘It confirms that trans rights are indeed human rights and trans refugees enjoy the same protection under the European Convention for Human Rights as everybody else. In times like these, this is a strong signal of hope to our most vulnerable members.’

Moreover, Arpi Avetisyan, senior litigation officer with ILGA-Europe Arpi Avetisyan said:

‘This is an important and symbolic judgment. For the first time the court confirms the right  to legal gender recognition of refugees, and taking note of the right to human dignity as underscored by the Hungarian Constitutional Court.

‘Significantly, it also reiterates states obligations to have procedures in place allowing recognition of gender identity and name change for trans people in general. We call on Hungarian government to implement the judgment swiftly and bring necessary changes.’