• HRLPR

A Rainbow Shrouded in Darkness: Hungary Ends Legal Recognition for Transgender Persons

Updated: Aug 26, 2020


Introduction

As people and governments continue to reel under the pressure of the COVID-19 pandemic, the Hungarian Parliament has shocked the world by enacting a law that effectively ends legal recognition of transgender persons. Within days of the imposition of a state of emergency in the country which allowed Prime Minister Viktor Orban to rule by decree, this new law was announced. This article discusses how the law stands in conflict with established principles of non-discrimination and explores the legal and social implications of this amendment. It also analyses the status of transgender rights in the Indian legal framework.

The Amended Registration Procedure of Transgenders in Hungary

Article 33 of Bill T/9934 amends the Civil Registration Procedure (“Amendment”), replacing the word ‘nem,’ which is the term for both sex and gender, to ‘születési nem’ which means sex assigned at birth, determined through primary sexual characteristics or chromosomes. Since születési nem is a time-based fact, it cannot be changed in the future. On the other hand, nem only refers to sex or gender, which is determined by the individual and may be changed later in life. Szuletsu nem is what the government now requires for all official purposes, e.g., registration of birth, death, marriages, and a host of other things. As transgender individuals have a gender identity that is different from the one assigned to them at birth, this Amendment forces them to be identified by a definition of gender or sex that does not reflect their personality. Not only does it face harsh criticism from within and beyond the country but also stands on shaky constitutional ground.

Legal Implications

The Hungarian Constitution in its Article XV guarantees equality to all persons and embodies the principle of non-discrimination on grounds of gender or birth. This is complemented by the right to life and human dignity enshrined in Article II. The Constitutional Court of Hungary in 2018 held that the right to a name flows from the fundamental right to human dignity, and includes the right to change one’s name in accordance with one’s perceived gender identity. This clearly paves the way for legal recognition of the change in gender on the basis of an individual’s self-perceived gender expression. However, the new Amendment stands against it.

The Amendment also infringes multiple rights guaranteed by the European Convention of Human Rights (ECHR), which Hungary is bound to protect, as a state-party to the Convention. Like the Hungarian Constitution, Article 14 of ECHR prohibits discrimination on grounds including sex, birth or “other status.” The European Court of Human Rights (ECtHR) in its decision has interpreted “other status” to include gender identity, thereby according equal protection to all gender identities under the Convention.

The Hungarian government has defended its stance by stating that the Amendment does not in any way prevent people from expressing their identity, just as the government cannot instruct anybody what to think. This argument is ill-premised, as it presumes that the lack of a direct discrimination at the hands of the government is the same as equal protection and non-discrimination. Hungary’s Equal Treatment and the Promotion of Equal Opportunities Act, 2003 specifically prohibits both direct and indirect discrimination on grounds of sexual identity and orientation, including those provisions that “apparently comply with the principle of equal treatment” but put any persons or groups having certain characteristics at a “considerably larger disadvantage compared with other persons or groups in a similar situation.”

This Amendment attacks transgender individuals’ right to privacy. By requiring persons to state their birth-assigned-sex for registrations, the law compels them to reveal an aspect of their identity that is a core part of their private life. ECHR prohibits laws that invade into individuals’ “private lives” under Article 8. In the celebrated judgment of B v. France, the ECtHR expressly laid down that the right to gender identity is an intimate area of one’s private life and thus comes within the purview of Article 8. ECtHR reinforced this principle in Christine Goodwin v. UK, upholding that a state cannot refuse to register a change of gender in the birth certificate registry or deny legal recognition to such a change.

Social Implications

The invasive requirement of disclosing sex at birth by transgender people of Hungary, allows several government officials, potential employers, and other persons who deal with the information, access into the individual’s private realm. Revealing sensitive information to persons who hold the authority to make decisions will significantly affect the transgender’s individual risk and expose them to prejudices held by these officials. Being subjected to such prejudice can have a lasting impact on the individual’s career, social standing, medical treatment and psychological health.

Another consequence of this Amendment would be the reduced access of transgender individuals to other kinds of rights. For instance, transgender women will be ineligible to receive the aid and social security benefits available to cisgender women in the country. Similarly, in the case of civil unions between heterosexual couples where one member is transsexual, the member would be forced to register their birth-assigned-sex. This would make the couple only eligible to register a partnership, which is available to homosexual couples - as opposed to a marriage which is available to heterosexual couples and brings with it greater rights in terms of adoption and inheritance.

The Hungarian Government further justifies the amendment insisting that a complete change in chromosomes and thus, in one’s biological sex, is never possible. Chromosomal elements may not always be changeable, and individuals who do not identify with their birth-assigned sex may not necessarily have gone through or might have only partially gone through the process of sex-reassignment and therapy. However, this does not mean that the birth-assigned sex should be given priority over the one that individuals actually identify with and prefer. This has been acknowledged in the case of Christine Goodwin.

A Glance at Transgender Rights in India

The Supreme Court of India in NALSA v. Union of India had invoked multiple fundamental rights, including the