Why Hungary’s LGBT+ court case should matter to Christians

The Court found that the act not only violated EU law but also its fundamental values. This was the first time in history that the Court found a self-standing, independent violation of these values, which are enshrined in Article 2 of the Treaty on the European Union (TEU).

The case was brought by the European Commission against Hungary after it adopted an act that restricted content portraying or promoting ‘gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality' to protect minors and ensure their harmonious mental, physical and intellectual development. The Court found all pleas of the Commission well-founded, which means Hungary must now, in essence, repeal the act.

Reasons behind the judgment

The decision was not a surprise, since the opinion of the Advocate General – a recommendation which the Court often follows – was published last June, drawing similar conclusions to the final judgement.

The Commission put forward that Hungary infringed on several directives providing the freedom of services within the EU by limiting the access of LGBT+ content for minors in media services, ads, education and child care. Hungary contended that education and child care fall to the competence of Member States instead of the EU and that Member States should have a margin of discretion to interpret the protection of minors in line with their moral and social traditions.

The Court found that the law infringed all of the directives since the limitation of displaying LGBT+ lifestyles limits the incentive to produce or sell such content in Hungary, which violates the free flow of services in the EU market. It also argued that the law was too broad and out of proportion when it came to protecting minors, since – as the Advocate General pointed out – Hungary did not provide any empirical evidence as to why children would be harmed by LGBT+ content.

The Court also said that LGBT+ content in the media “in no way prevents parents from exercising their responsibility as educators towards their children” and is no threat based “solely on the ground that they have as a defining element the promotion or portrayal” of these lifestyles. On the contrary, the Court held that limiting this content alienates minors and adolescents “whose gender identity or sexual orientation does not correspond to ‘traditional social norms’, with those restrictions causing more harm than they prevent”.

The Court also found violations of the respect for private and family life, freedom of expression, non-discrimination, and the human dignity of LGBT+ individuals.

As the law specifically targeted content about LGBT+ people, it treated their lives differently from those of cisgender and heterosexual individuals by banning their display and stigmatising that group, which amounts to a grave violation of human rights under the EU Charter of Fundamental Rights.

The Advocate General said that, in the proceedings, Hungary did not provide any scientific argument as to why LGBT+ content may be detrimental to children, and thus the limitation of those rights was not justified by necessity.

The Court went even further in saying that a distinction of content based on gender or sexual orientation cannot be suitable for protecting children at all, as such a measure infringes on the essence of non-discrimination against LGBT+ individuals. Thus, in the Court’s view, Hungary could not have won this debate by any argument whatsoever.

Besides, a violation of GDPR was also found, as the law made available the personal data of convicted paedophiles to relatives and teachers of victims without sufficiently precise guarantees.

Something more is in this case

The Commission invoked, the first time ever, a self-standing, independent violation of Article 2 TEU, which enumerates the basic values of the European Union.

The Commission said that Hungary has committed a systemic, direct assault on the values of human dignity, equality, and respect for human rights, including the rights of persons belonging to minorities – values that are common to the Member States in a society in which pluralism, non-discrimination, and tolerance prevail.

Hungary argued that those values are of a political nature, and the Article 7 procedure is an adequate way to enforce them; thus, the Court has no authority to decide. However, the Court said that the values of Article 2 TEU are not only political but of a legal nature as well, since the mutual trust between Member States in implementing EU law cannot be upheld without legally enforceable values. It reminded them that these values are also prerequisites to joining the EU, so they must be upheld and promoted by Member States even after accession, establishing a general principle of non-regression.

The Advocate General opined that, by joining the EU, Member States have freely and voluntarily acceded “to the constitutional choice of a good society as expressed in Article 2 TEU”. She went on to say that the “Court of Justice is a constitutional court”, and the defence of those values is “not its political choice, but its constitutional task".

In the specific case, the Court held that the law stigmatises people, “establishing, maintaining or reinforcing the social ‘invisibility’ of some members of society (...) with the result that it is contrary to the very identity of the Union as a common legal order."

A missed opportunity for Christians?

In my opinion, the original Hungarian legislation was a double-edged sword from the beginning. It seems from the opinion and the judgement that the government of Hungary could not (or did not want to) back up their position on the harmfulness of LGBT content to the development of children, yielding the Court a high ground by refusing their burden of proof.

Furthermore, adopting these child protection measures as a rider to a bill against paedophilia caused moral backlash even with some Christians, and the Court also recalled it many times. The bill – originally aimed at better transparency about convicted child abusers – was amended at the late stages of the debate to include the restrictions on LGBT+ content.

Approaching the 2022 elections, a main slogan of Orbán’s campaign became ‘leave our children alone’, implicitly conflating child abuse and LGBT+ as similar threats to society. And as child protection became a political theme, substantial arguments have been omitted from the whole debate.

But despite the populist rhetoric and the scarce empirical backup, the content of the law itself was an attempt to limit the unfolding LGBT+ agenda in schools – which, make no mistake, is not a question of facts, but a deliberate normalisation of homosexual and transgender lifestyles among minors.

Unlike in Hungary, where such content was not yet too common, the EU Court has explicitly deemed such education to be positive for children. It is also unclear if any rational evidence would have led the Court to a different conclusion in such a value-driven dispute.

By effectively repealing that law from such a strong position, it indicates that European institutions view content featuring LGBT+ lifestyles as inseparable from the dignity of such persons themselves and that holding a different moral view is currently outside of the margin of tolerance in the EU legal system. Not only did EU institutions declare LGBT+ education as something positive, but they elevated their freedom to the level of foundational values.

This is in sharp contrast with the Christian view, which opposes a homosexual lifestyle and defying one's gender at birth on a Biblical basis, yet rejects hatred and discrimination against such persons. The decision may not only cause practical harm for children exposed to such content without their parents’ consent, but it can also shake trust in our shared values and the connection of many Christians in the European Union.

Therefore, a call for change from a Christian perspective is clear: an alternative concept of European values and identity must be proposed, and our positions must be spoken more honestly and clearly. For great is the fall of a house built on sand.

Illés Katona is a Catholic law student at ELTE University in Budapest. His main research involves the ethics and regulation of artificial intelligence, in particular human control in decision-making. He also publishes and teaches in the fields of public policy, human rights and EU law, and is active in a number of civil and youth projects.