Hungary defends anti-LGBT education law before Court of Justice of the EU

Hungary’s Justice Minister Judit Varga Wednesday promised that Budapest will defend an education law against criticism by the EU that it discriminates against people on the basis of sexual orientation and gender identity.

Varga filed a counterclaim with the Court of Justice of the European Union regarding her nation’s alleged breach of obligations initiated under the Hungarian Child Protection Act 2021. The European Commission referred Hungary to the court over the anti-LGBTQ+ law in mid-2022, considering it as violating the fundamental rights of individuals and EU values.

Varga argues that “education is a national jurisdiction and it is the right of the parents of decide on the upbringing of children.” Passed in June 2021, the law bans the use of materials seen as “promoting” or “portraying” homosexuality or gender transition in schools. Prime Minister Viktor Orban has asserted that the law is about the education of children regarding any sexual content, calling himself “a committed defender of rights,” including for LGBTQ+ people.

Critics argue that the law contravenes the rights of the child and stigmatises LGBTQ+ people. Eurochild, a network of organisations and individuals that campaign for the rights of the child, condemned the law as “us[ing] child protection as an excuse to curtail the rights of children” and argued that it “contributes to a climate of fear.”

Amnesty International argued that the law “amounts to discrimination based on sexual orientation and gender identity,” constituting a violation of the European Convention of Human Rights (ECHR). The law requires media content that depicts “pornography or sexuality for its own sake” to be prohibited to minors. Amnesty International says this provision creates a “false narrative” by comparing depictions of LGBTQ+ people to depictions of pornography or extreme violence.

In 2017, the European Court of Human Rights previously found that Russia’s prohibition of the “promotion of homosexuality” among minors is a violation of Article 10 (freedom of expression) and Article 14 (prohibition of discrimination) of the ECHR.

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Italy: Professor and ex-gay porn star Ruggero Freddi wins unfair dismissal lawsuit against University La Sapienza

Ukrainian MP submits bill to legally recognise same-sex partnerships: ‘There is no time for hesitation’

On 6 February 2023, the Court of Final Appeal (CFA) – Hong Kong’s highest court – ruled in favor of two transgender applicants seeking to change the gender marker on their identification cards.

Repost of: https://verfassungsblog.de/incremental-but-significant/

The CFA held that the Hong Kong government’s policy, which required applicants to undergo full sexual reassignment surgery (SRS) to change their gender markers, unconstitutionally infringed upon their right to privacy.

While obviously consequential – especially for the Region’s transgender community – the judgment is not a surprise or a departure from previous judicial decisions in this area. Rather, it is doctrinally and strategically consistent with the CFA’s LGBTQ jurisprudence, which proceeds incrementally and is highly attuned to the (ever-shrinking) political space in which Hong Kong courts operate.

Background and Ruling

A decade ago, the CFA issued a landmark judgment in W v Registrar of Marriages. It held that laws preventing a post-SRS transgender person from marrying her opposite gender partner violated her constitutional right to marry. Eschewing the normal proportionality analysis, the CFA held that this restriction violated “the very essence of the right”. In other words, it was such a serious rights violation that the government was not permitted to provide a justification. But the Court dampened the impact of this judgment through a creative remedy. It delayed the declaration of invalidity by 12 months to give the government a chance to amend the relevant laws to comply with the ruling. When the government failed to do so by the one-year deadline, the applicant (and those similarly situated) was permitted to marry opposite sex spouses.

The CFA further recommended a review of the existing legal framework on gender recognition. The government in response created The Inter-departmental Working Group (IWG) on Gender Recognition “to consider legislation and incidental administrative measures that may be required to protect the rights of transsexual persons in Hong Kong in all legal contexts and to make such recommendations for reform as may be appropriate.” Despite setting out a consultation paper in 2017, the IWG has still not published a final report and the government has not legislated to protect the rights of transgender persons.

It is within this context that the CFA issued its recent ruling in Q v Commissioner of Registration. The applicants, Henry Tse and Q, are female to male transgender persons. Both suffered from gender dysphoria for which they received physical and psychological medical treatment. Their medical treatment included, among other things, long-term hormone therapy and irreversible mastectomies. Neither was willing to undergo a complete SRS, which would have required more invasive surgery.

The applicants officially changed their gender markers and names in the United Kingdom (UK). As UK citizens, they received new British passports reflecting their male identities and chosen male forenames. Both applicants then formally changed their names on their Hong Kong Identity Cards (HKIDs). But when they sought to change the gender markers on their HKIDs, the Commissioner of Registration rejected their applications. The Commissioner’s decisions were based on the government’s policy guidelines, which required a full SRS – removal of the uterus and ovaries and construction of a penis – to effectuate a “sex change from female to male.”

Tse and Q challenged this policy on the grounds that it violated their right to privacy under Article 14 of Hong Kong’s Bill of Rights Ordinance. Specifically, they argued it was disproportionate for the government to require such invasive surgical procedures to change their gender markers. They provided medical evidence showing that these procedures were not necessary for many transgender persons (including the applicants), whose gender dysphoria had been effectively treated and who were already living in their chosen gender.

The CFA accepted the applicants’ claim that the policy encroached upon their right to privacy.  But unlike the W judgment, where the CFA categorically ruled in favor of the applicant, the Court here followed its usual practice. It went through the proportionality analysis, which requires the government to justify its encroachment on fundamental rights in four steps. The first two steps require the government to establish legitimate aims and show a rational connection between those aims and the impugned policy. The applicants did not challenge the lower court’s ruling that the government in this case had a legitimate aim (“to establish a fair, clear, certain, and objective administrative guideline”) and that the policy was rationally connected thereto.

The judgment turned on the third step of the proportionality analysis: whether the restriction on applicants’ right to privacy was “no more than necessary” to achieve the legitimate aim. Here, the Commissioner of Registration advanced three justifications: first, a full SRS was the only workable, bright-line rule; second, administrative problems would arise due to the “incongruence between the external physical appearance” of the applicant and gender marker if a different rule was adopted; and third, hormonal and psychiatric treatments were not “absolutely irreversible” such that if applicants were to stop the treatment, they might become pregnant and give birth.

The CFA rejected all three justifications, relying heavily on comparative analysis. On the question of line-drawing, the Court cited the European Court of Human Rights judgment in AP, Garçon and Nicot v France to conclude that medical treatment “should not be prescribed merely to promote administrative convenience or clarity.” Rather, it should only be administered in the best interests of the patient. The CFA noted that many transgender persons in Hong Kong feel pressured to undergo intensive surgery to have their gender officially changed on the HKID. Such pressure, said the Court, is “objectionable in principle” and the adoption of the Commissioner’s bright-line rule therefore “weighs significantly against the Policy”.

The CFA proceeded to reject the Commissioner’s argument that it would be unfeasible to adopt a different rule. The Court referred to the IWG on Gender Recognition consultation paper, which listed more than twenty jurisdictions around the world that permit individuals to change the gender marker on identification documents upon the submission of medical evidence and documentation, but do not require complete SRS. The Court highlighted the UK’s Gender Recognition Act 2004 that requires applicants to prove that they had gender dysphoria, lived with the acquired gender for at least two years, intend to continue living in the acquired gender until death, and to meet certain evidentiary requirements. It further stressed that the applicants were not asking for a minimal regime of self-certification to change gender markers. Rather, their claim, with which the Court agreed, was that less intrusive lines could be drawn and administered effectively.

On “external incongruence”, the CFA determined that the government’s policy exacerbated this problem. As the Court noted, transgender persons regularly experience the “violation of their dignity and invasion of their privacy” when they are asked to produce identity cards on which the stated gender does not match their outward appearance. Thus, the Commissioner’s claim has it backwards: adopting a less stringent rule for changing gender markers would lessen, not worsen, the intrusion on the applicants’ right to privacy.

Finally, as to the claim that the applicants had not irreversibly changed their gender, the CFA relied on medical experts to find that post-transition pregnancy is exceptionally rare. Hence, it would be “wholly disproportionate” to require the applicants to undergo a full SRS simply to avoid this contingency.

For these reasons, the CFA ruled against the government on step 3 of the proportionality test. It was not, therefore, necessary to rule on step 4, which asks whether a fair balance has been struck between the policy’s societal benefits and the intrusion on individual rights. Nonetheless, the Court noted in obiter dicta that it would have ruled for the applicants here. It said, “[T]he societal benefits of the Policy are […] at best relatively slim”, while imposing an “unacceptably harsh burden on the individuals concerned.”

The CFA, therefore, ruled in favor of the applicants, holding that the current policy violates their right to privacy under Article 14 of the Bill of Rights Ordinance. The Court added that while it is “not for the Court to re-write the Commissioner’s policy”, there are “various models and approaches” that the government might consider in reformulating the policy to bring into compliance with Article 14. Given its failure to respond to similar prodding in the W judgment, the government is unlikely to make any far-reaching changes to the existing framework on gender recognition.

The CFA’s Progressive Recognition of LGBTQ Rights

The judgment in Q v Commissioner of Registration is a significant victory for Hong Kong’s transgender community and an important step towards greater legal recognition of LGBTQ rights in the Region. As in W, the CFA’s judgment was limited to the issues raised in the case. It did not, for instance, infer a broad right to gender recognition from constitutional rights to privacy and equality.

Such an incremental approach is in-keeping with the CFA’s past judgments in this area. Consider two judgments related to the recognition of same-sex marriage. In QT v Director of Immigration (2018), the CFA ruled that a same-sex spouse of a Hong Kong resident was eligible for a dependent visa as the couple were married in the UK. It was irrational, the Court held, to treat lawfully married same-sex couples differently from heterosexual married couples. A year later, in Leung Chun Kwong v Secretary of the Civil Service (2019), the Court extended medical and tax benefits to the same-sex partner of a civil servant. Again, the couple had been married abroad (in New Zealand) and the Court ruled that the government must treat married couples equally. However, it stopped short of declaring that same-sex couples have the right to marry in Hong Kong. Lower courts have, in fact, rejected judicial review applications seeking recognition of same-sex marriage under Hong Kong’s constitutional framework.

Still, the Q judgment may have broader implications. While W ruled that post-SRS transgender persons have the right to marry their opposite gender partners, it was silent as to the rights of individuals like Q and Tse, who received treatment for gender dysphoria but not a complete SRS. The Q judgment may broaden the right to marry to encompass them too. Meanwhile, a lower court case from 2018 involved a male-to-female transgender prisoner, who similarly had not undergone a full SRS. She alleged that male guards violated her right to equality by subjecting her to strip searches and other demeaning treatment. The lower court ruled against her, but the CFA in Q cited the facts of this case sympathetically to illustrate the challenges faced by transgender persons regardless of the gender listed on their identity cards. It is possible that, post-Q, courts may be more favorably disposed to such judicial review applications.

A Strategic Judgment in Turbulent Times

The CFA over the past decade or so has consistently, if narrowly, ruled to expand the constitutional rights of LGBTQ persons. This latest judgment fits within that trend and follows the W case in urging (but not requiring) the government to adopt comprehensive new laws or policies to remedy the remaining gaps. This suggests the Court has adopted a strategic approach. Hong Kong has a hybrid political system, which has become more authoritarian in recent years, especially since the passage of the National Security Law (NSL) in 2020. In this constrained environment, the CFA must tread carefully, especially when it rules on national security or other politically sensitive matters.

LGBTQ rights had proved to be safe terrain for the CFA to develop a progressive constitutional jurisprudence. But was this still true after the passage of the NSL? The Court’s judgment in Q v Commissioner of Registration – and the lack of political backlash so far – suggests that there is still room for it to proceed cautiously towards the fuller realization of these rights.

Les thérapies de conversion continuent à être légales en Europe

La Commissaire aux droits de l’Homme du Conseil de l’Europe Dunja Mijatovic a exhorté les Etats-membres à mettre fin aux «thérapies de conversion»

https://www.watson.ch/fr/international/lgbtqia%2B/895000756-les-therapies-de-conversion-restent-legales-en-europe

West Virginia will ask US Supreme Court to lift injunction on law restricting transgender athlete participation

West Virginia Attorney General Patrick Morrisey Thursday announced that his office plans to “fight for fairness in women’s sports” and will ask the US Supreme Court to lift an injunction on H.B. 3293, a law restricting transgender students from “participating on athletic teams” that match their gender identity.

During a news conference, Morrisey stated that he will file a motion before the Supreme Court and aruge that the injunction “harms biologically female athletes, too, who will continue to be displaced as long as biological males join women’s sports teams. In that way, the majority’s cursory decision undermines equal protection—it doesn’t advance it.”

Becky Pepper-Jackson, an 11-year-old girl, filed a complaint challenging the restrictive law in May 2021 with the help of the American Civil Liberties Union (ACLU). Under H.B. 3293, Pepper-Jackson is blocked from joining the girls track and field team at her middle school because she is transgender. The complaint argued that Pepper-Jackson’s rights under Title IX and the Equal Protection Clause are violated by the law and that not allowing girls to partcipate in sports because of their transgender status is unconstitutional.

The US District Court for the Southern District of West Virginia granted Pepper-Jackson’s request for a preliminary injunction on July 21, 2021. However, on January 5, 2023, the court ruled that “H.B. 3293 is constitutional and complies with Title IX” and dissolved the preliminary injunction. Pepper-Jackson filed a motion to stay the dissolution pending appeal. The district court denied her motion on February 7, and Pepper-Jackson appealed the decision to the US Court of Appeals for the Fourth Circuit, which granted the motion and reinstated the preliminary injunction on February 22.

According to Morrisey, the purpose of the law is to “protect the safety of women and make sure women are able to compete under fair circumstances.” However, the ACLU noted that “[t]his law was signed by Gov. Jim Justice despite his inability to name any transgender athletes in West Virginia.”

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USA: Florida college students, civil rights groups protest restrictive education bill to ban diversity, equity and inclusion programs and associated “belief systems”

College students across Florida staged walkouts this week in protest of Governor Ron DeSantis’ proposal to ban diversity, equity and inclusion programs and associated “belief systems” on college campuses.

House Bill 999 targets diversity, equity and inclusion (DEI) programs and the study of critical race theory at public Florida universities. The bill includes a ban on university spending to “promote, support, or maintain” any programs, fields of study or activities that support DEI or critical race theory ideology but notably does not define either concept. If passed, the legislation would also prevent universities from using diversity statements or any other “political identity filters” when hiring new staff or considering tenure for existing staff.

House Bill 999 would impact Florida education at a collegiate level, and student groups across the state have organized on-campus protests against the bill. Led by groups like Students for a Democratic Society (SDS), students at all of Florida’s major universities, including Florida State University, The University of Florida and Florida A&M, have begun rallying against the bill. On Tuesday, students at the University of South Florida were arrested by campus police during a protest led by SDS.

In addition to student groups, House Bill 999 has already received backlash from civil rights and educational organizations like the American Civil Liberties Union (ACLU), the American Historical Association (AHA) and the American Council of Learned Societies (ACLS).

The ACLS is currently drafting a petition against the bill, arguing:

The promise of academic freedom has played a key role in the growth and strength of higher education in the United States. Thanks to the protection of the free discovery and exchange of knowledge and of faculty decision-making, American colleges and universities have long been the envy of the world. These institutions are valued for the basic and applied research that they conduct; for their role as anchors of industry and of local communities; for providing equitable access to opportunity, increasing over time, for those who have not had such access, including women, people of color, and first-generation college students; and for their capacity to prepare students to be thinking and feeling people in a world larger than their hometowns and states.

In 2022, Florida passed the Parental Rights in Education bill, better known as the “Don’t Say Gay” bill, prohibiting discussion of sexual orientation and identity within certain grade levels, and House Bill 1467, requiring the review of books available in schools and classrooms. DeSantis proposed House Bill 7, nicknamed the “Stop WOKE” Act, which would have restricted discussions of race and gender in higher education classrooms, but the bill was blocked by a federal judge in November 2022.

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Uganda lawmaker introduces ‘anti-homosexuality’ legislation

The so-called Anti-Homosexuality Bill, introduced to Uganda’s parliament on Thursday, seeks to ban all forms of homosexual relations, as well as vaguely described “related matters.”

Under the legislation, introduced by Member of Parliament Asuman Basalirwa, individuals convicted of the “offense of homosexuality” would face 10 years in prison. Notably, this offense includes not only sexual relations but also the “[touching] of another person with the intention of committing the act of homosexuality,” or one’s identification as “lesbian, gay, transgender, a queer or any other sexual or gender identity that is contrary to the binary categories of male and female.”

The bill also seeks to treat HIV as an aggravating offense and to subject suspects to forced HIV testing.

In addition, the legislation seeks to criminalize a range of related “offenses.” Anyone who “aids, abets, or counsels” with respect to homosexuality would face two years in prison — a clause that would appear to seek the criminalization of relationship advice. And anyone who seeks to facilitate a same-sex marriage would face 10 years in prison.

If passed, the law would also ban the “promotion of homosexuality,” an “offense” covering a vast swath of amorphously described activities, such as sponsoring “homosexuality or other related activities” or using the internet to “promote homosexuality.”

The bill provoked the immediate ire of human rights activists.

Oryem Nyeko, Uganda researcher at Human Rights Watch, said: “One of the most extreme features of this new bill is that it criminalizes people simply for being who they are as well as further infringing on the rights to privacy, and freedoms of expression and association that are already compromised in Uganda. …Ugandan politicians should focus on passing laws that protect vulnerable minorities and affirm fundamental rights and stop targeting LGBT people for political capital.”

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USA: New Jersey AG issues civil rights violations to 28 municipalities for LGBTQ discrimination

The New Jersey Division on Civil Rights (DCR) Wednesday issued notices of violation to 28 municipalities in the state for civil rights violations committed through exclusionary marriage license practices against non-binary people.

The notices allege that the municipalities in question violated the Law Against Discrimination (LAD) by requiring non-binary people applyling for marriage licenses to misgender themselves under oath either as male or female.

According to the Attorney General’s office, such a requirement is inconsistent with the marriage license application on the state’s health department website, which includes a gender option for non-binary individuals and has since 2019. The municipalities face penalties of up to $10,000 if the issue is not resolved. The state was motivated to act because of a report that discovered “certain municipalities violated the LAD by expressly limiting marriage licenses to opposite-sex couples.”

If the municipalities fail to correct this issue, they will face up to $10,000 in fines. The notice also contains an offer of settlement  if municipalities update the marriage licenses on their websites, include a link to the New Jersey Department of Health’s marriage license application, remove any gender-restrictive language pertaining to marriage licenses from their websites, adopt a written policy prohibiting discrimination against those using the municipality’s services, and provide anti-discrimination training to all employees.

The Law Against Discrimination prohibits discrimination by organizations serving the public on the basis of actual or perceived race, religion, national origin, gender, sexual orientation, gender identity or expression, disability, or other protected characteristics. According to the DCR, the exclusion of a non-binary gender identifying option violates this provision.

The notices served to the 28 counties are the latest action in the DCR’s Marriage Equality Enforcement Initiative, which was implemented to ensure that municipalities in New Jersey comply with the Law Against Discrimination and provide gender-inclusive marriage licensing options to the public.

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USA: Fourth Circuit hears arguments regarding West Virginia Medicaid coverage of gender-affirming surgeries

The US Court of Appeals for the Fourth Circuit Tuesday heard oral arguments on whether the West Virginia Medicaid Program’s denial of gender-affirming surgery for individuals with gender dysphoria violates the Affordable Care Act, Medicaid Act and Equal Protection Clause under the US Constitution’s Fourteenth Amendment.

Caleb David, attorney for the state defendants, argued that West Virginia’s program treats everyone equally and provides the same amount of coverage to both trans and cis gender participants who seek treatment under the same diagnosis. Judge Diana Gribbon Motz asked the defense whether transgender men and cisgender women are equally situated, regardless of their diagnosis, when they seek similar medical care. David responded by saying that the insurance industry and the Medicaid program define standards for coverage differently.

Tara Borelli, the attorney for the plaintiffs, responded to Judges Julius Richardson and Allison Jones Rushing’s questions regarding West Virginia Medicaid’s  refusal to cover surgeries for people who have been diagnosed with gender dysphoria by stating that gender dysphoria is a diagnosis that only pertains to transgender people. As a result, she argued that the exclusion of the surgeries only applied to particular people.

In David’s closing argument he reiterated that West Virginia Medicaid is not required to cover the surgeries even if it is deemed necessary.

Christopher Fain and Shauntae Anderson, the named plaintiff in the class action, brought the case against West Virginia state officials and the West Virginia Department of Health and Human Resources, Bureau for Medical Services. Fain and Anderson receive hormone therapy for their gender dysphoria diagnosis. Both plaintiffs wish to receive gender-affirming surgery, however West Virginia’s Medicaid Plan exclusion of transsexual surgery prohibits any transgender individual who is “diagnosed with gender dysphoria” from receiving “coverage for the surgical treatment of this diagnosis.”

The trial court found in favor of the plaintiffs and granted their motion for summary judgement. The trial court found that West Virginia Medicaid’s exclusion “invidiously discriminates on the basis of sex and transgender status.”

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