Updated: Aug 26, 2020
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.
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.
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 right to equal protection of laws, right to life and dignity, and the freedom of expression enshrined in the Indian Constitution to rule that legal recognition of an individual’s self-identified gender is a constitutional mandate. It has clarified that use of the word, ‘sex’ in the right against discrimination “is not just limited to the biological sex of male or female, but intended to include people who consider themselves to be neither male or female,” and that the government cannot “prohibit, restrict or interfere with a transgender person’s expression of such personality.”
Unfortunately, India suffers from its own version of a regressive transgender rights law in the form of the Transgender Persons (Protection of Rights) Act, 2019 which came into force earlier this year. The law requires medical certificates of sex-reassignment surgery to be approved by government authorities in order to register a change in an individual’s gender, a provision that violates the mandate of the NALSA ruling which affirmed that the right to self-determination of gender stands independent of any sex-reassignment surgery. Human rights groups in India have even expressed their plans to challenge the law, as instead of furthering transgender rights, this requirement encroaches upon the right to dignity and right to privacy under Article 21 of the Indian Constitution. It also violates the right to equality and non-discrimination under Articles 14 and 15 as cisgender people are not bound by law to prove their gender, but transgender persons are. This is an unreasonable classification. It further inhibits gender expression under Article 19 which grants freedom of speech and expression.
Moreover, it lays down a long-drawn procedure for registration of a change in gender allowing bureaucratic red-tapism. It also fails to address significant policy questions necessary for the welfare of the transgender community, including setting up of mechanisms for registration of marriages, civil partnerships, adoptions, social security benefits, reservations in educational institutions and employment, among others. The law thus fails to implement the constitutional mandate as directed by the NALSA decision.
Hungary’s far-right government has been on the radar for several controversial decisions ever since it rose to power in 2010. Prior to derecognising transgender identities, it has rewritten the country’s constitution, assumed greater control of media and press, and interfered with school curricula, in what has been allegedly called an attempt to wage a cultural war. Yet, the new law is a first of its kind in Europe that patently turns its back on several decades of social and legal developments in the field of LGBTQ+ rights. This comes at a time when countries around the world are liberalising their laws to allow greater protection to the transgender community. A month after Hungary’s Amendment, the US Supreme Court pronounced a much-celebrated verdict in Bostock v. Clayton County, ruling that firing a person from their job on grounds of being gay or transgender is violative of the Civil Rights Act of 1964. On this side of the Atlantic, it is now up to the Hungarian Constitutional Court and the ECtHR to take a page from US Supreme Court’s book and uphold transgender rights in the face of this regressive new Amendment.
Back home in India, the Transgender Persons Act, 2019 is at odds with the NALSA vision. It not only requires revision, so far as it mandates sex-reassignment surgery for recognizing a legal change in gender, but also needs to be more fleshed out, addressing concerns regarding marriage, adoption, social security, and reservations for the transgender community.
Title Image Source: Kafkadesk
This article has been written by Adyasha Samal who is an undergraduate law student at Hidayatullah National Law University. She is interested in human rights, with a focus on issues relating to gender justice.