Category Archives: Allgemein

A New Chapter in the Hungarian Government’s Crusade Against LGBTQI People

A New Chapter in the Hungarian Government’s Crusade Against LGBTQI People

Eszter Polgári

On 10 November 2020, the National Assembly passed the Enabling Act authorizing the Government to govern by decree for 90 days in the state of danger. That same evening, the Minister of Justice submitted a whole package of legislative reforms, including the Ninth Amendment to the Fundamental Law of Hungary. In a separate post last week, Viktor Kazai framed the amendments in the context of Hungary’s descent into permanent electoral authoritarianism. We focus on the two provisions, in particular, which would detrimentally affect the rights of the LGBTQI community:

First, a new sentence will be added to Article L declaring that “(t)he mother is a woman, the father is a man”. Second, Article XVI (1) will be complemented by the following provision: “Hungary protects children’s right to their identity in line with their birth sex, and their right to education according to our country’s constitutional identity and system of values based on Christian culture”.

We argue that it will be extremely difficult to deconstruct the institutionalized trans- and homophobia, which the above amendments would further entrench.

The Hungarian Government’s long game

The Government’s conservative stance on families is well-known and has been subject to criticism since 2011. We have argued elsewhere that the restrictive definition of families introduced by the cardinal law on the Protection of Families, limiting families to marriage based unions only, while excluding same-sex unions (both civil and registered partnerships), was in clear contradiction with European human rights standards and the interpretation of the European Court of Human Rights (ECtHR). The above definition was quashed by the Constitutional Court, partly because it excluded marriage-like institutions that only same-sex partners had access to.

A slightly more moderate version of the quashed definition was incorporated into Article L (1) – that already expressly limited marriage to men and women – through the Fourth Amendment to the Fundamental Law in 2013. The current version reads as follows: “Hungary shall protect the institution of marriage as the union of a man and a woman established by voluntary decision, and the family as the basis of the survival of the nation. Family ties shall be based on marriage or the relationship between parents and children.” The Ninth Amendment will define parents’ gender as mother and father, female and male, at the end of the quote.

Implicitly anti-LGBTQI

Although this addition does not seem to be an LGBTQI-related norm at first sight – apart from the gender affiliated with motherhood and fatherhood – the explanatory memorandum of the proposal makes it unquestionably clear: In order to ensure children’s upbringing in dignity, it is necessary to entrench the ruling parties’ belief based on the inalterability of the birth sex, and hence declare that the mother is female and the father is male.

This reasoning is not surprising, bearing in mind that legal gender recognition – the process allowing individuals to change their first name and gender marker in administrative records – was made impossible in May when the act on registry procedures was amended. Instead of ‘sex’, the law now contains ‘sex at birth’, which is defined as ‘the biological sex based on primary sex characteristics and chromosomes’. This provision does not only go against the standards set with regard to legal gender recognition by the ECtHR, but also contradicts a recent decision of the Constitutional Court in the case of a recognized trans refugee in Hungary. The Court called on the legislature to pass rules on legal gender recognition for those legally resident in Hungary. The Ninth Amendment and its explanatory memorandum send a clear message to the trans community – its primary target: The hope to reintroduce legal gender recognition anytime soon are slim.

The devil in the details

The obtuse wording’s real repercussions may only be understood in light of the Omnibus Bill submitted at the same time, amending – among others – the Civil Code and Child Protection Act. The Government’s recent rhetoric has foreshadowed restrictions on becoming an adoptive parent as a single person, in particular for those living with their same-sex partner.

Since October 2020, adoption by single individuals is only possible if no married couple in the country is willing to adopt that child. The newly proposed provisions, as a general rule, explicitly limit adoption to married couples, and it is the minister responsible for family policy who can personally grant exemption for single persons.

The reasoning does not even seek to hide the real reasons for the change. As expressed in the Fundamental Law, marriage-based families are perceived as the desirable formation for a child and this understanding resonates well with the pronouncement of the gender of the parents. In order to be sure that same-sex couples do not sneak in through the back door offered by single-parent adoption, a further control is introduced over the renitent decision-makers in child protection services who – in the best interest of the child – allowed persons living with their same-sex partner to adopt individually.

Discrimination

The legislative changes on adoption raise a number of concerns. First, if single individuals were excluded with reference to their sexual orientation, or such a pattern is discernible, this would be a clear violation of Article 14 in conjunction with Article 8 of the European Convention on Human Rights (ECHR). The Grand Chamber of the ECtHR in E.B. v. France held that the sexual orientation of the person cannot be the sole ground for refusing the authorization of adoption, unless the state can provide particularly convincing and weighty reasons. Second, the Government’s move contradicts the vast amount of research about same-sex parenting that provides undisputable evidence as to their capability to be equally good parents as their different-sex counterparts. Third, it ostracizes – at least on the level of public discourse – hundreds if not thousands of same-sex couples that already provide a healthy and loving environment for their children in Hungary. Finally, it does not serve the interests of children awaiting adoption either. If no married couple is ready to adopt them, instead of trying to find an unmarried parent for them in the country, they are likely to be adopted abroad or kept endlessly in state care.

Institutionalized phobia

The trans- and homophobia behind the Ninth Amendment is most obvious in the new wording of Article XVI (1): Gender identity is based on sex at birth, and education shall reflect Hungary’s constitutional identity and Christian values. It can only be understood as an immediate reaction to the recent controversy around a children’s book featuring well-known tales, reframed to represent minority and marginalized groups, such LGBTQI persons, the Roma, the elderly, people with disabilities or refugees. A leading politician from the far-right Mi Hazánk Mozgalom (Our Country Movement) destroyed a copy of the book, claiming that it was ‘homosexual propaganda’. Joining the discussion, the Prime Minister demanded: ‘Leave our children alone’. Against this background, the Ninth Amendment is unsurprising. With Article XVI (1), the ruling majority wishes to make LGBTQI sensitization programs’ access to schools impossible. It entrenches an educational embargo in the Fundamental Law: no discussion about sexual and gender minorities is welcome.

Christian culture and constitutional identity

Looking at the Ninth Amendment through a non-LGBTQI lens, it neatly complements Article R (4) of the Fundamental Law, that was added by the Seventh Amendment in 2018: “(t)he protection of the constitutional identity and Christian culture of Hungary shall be an obligation of every organ of the State.” In the field of education, it is translated as an objective state duty to provide for education in a Christian spirit. This new provision has to be read together with Article XVI (2) and Article 2 of Protocol No. 1 of the ECHR. The former only recognizes the parents’ right to choose the upbringing to be given to their children, while the latter contains a more specific duty of the state, i.e. to “respect the right of the parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”. Textually, the new wording of Article XVI (1) would not create an immediate violation of the right of the parents to choose how they wish to educate their children. However, it unequivocally proclaims a strong state preference as to the content of instruction, and its chilling effect will prevent schools from giving room to non-conforming views. In the understanding of the ECtHR, rights in the ECHR are counter-majoritarian and in a democracy, based on the rule of law, states have to comply with the sui generis duty of neutrality (e.g. Barankevich v. Russia, par. 30).

Undermining independent oversight

Lastly, on 10 November, the Parliament’s Justice Committee presented a bill that would abolish the Hungarian Equal Treatment Authority (ETA), subsuming its activities under the Hungarian Commissioner for Fundamental Rights. The merger is primarily justified with the need to provide a more efficient institutional structure; bundling competences with the Commissioner would create a procedure that could address discrimination claims in a more comprehensive manner. In a ‘normal’ democracy, this move might even be appreciated. However, Hungary is not a ‘normal’ democracy and the Ombudsman is not an independent actor.

In recent years, the ETA has by far been the most successful body addressing claims on LGBTQI discrimination. In April 2020, the ETA was the only state body that criticized the proposal to ban legal gender recognition, whereas the Commissioner has not made any public statement, nor did he petition the Constitutional Court for constitutional review. We can only speculate about the driving force behind the elimination of the ETA. However, it is important to note that this body has an explicit mandate to address the types of discriminatory practices which the new rules on adoption may result in, as well as the openly homophobic efforts of local authorities to limit freedom of expression of LGBTQI persons that they construe as ‘homosexual propaganda’. While the mandate will not be severed, it will be subordinated by to the Commissioner, who has not shown any interest in protecting the rights of LGBTQI persons.

Final thoughts

The pending legislative amendments hit the LGBTQI community hard and – as it was observed in the previous post on the other changes the Ninth Amendment will bring about – it will be extremely hard to deconstruct the institutionalized trans- and homophobia. And if the proposals are passed, the Government will need to open a new front in their freedom fight against the EU: the EU LGBTQI Equality Strategy 2020-2025 (adopted just two days after the amendments had been tabled) is committed to enhance the protection of cross-border rainbow families and the availability of legal gender recognition.

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Inauguration d’un Centre universitaire dédié aux sciences des sexualités à Genève

Inauguration d’un Centre universitaire dédié aux sciences des sexualités à Genève

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Chères collaboratrices, chers collaborateurs, Chères étudiantes, chers étudiants, Chères et chers partenaires,  

Le champ des connaissances sur les sexualités se déploie aujourd’hui dans de multiples domaines – scientifiques, culturels, sociaux – et exige une approche holistique. Des mutations importantes et rapides ont lieu. Elles concernent autant les pratiques sexuelles et procréatives que la manière dont sont représentées les identités sexuelles.   Pour que les activités de recherche, d’enseignement et d’information scientifique dans ce domaine soient enfin réunies, pour stimuler les synergies entre les disciplines et densifier le dialogue avec la Cité, le Rectorat de l’Université de Genève crée le «Centre Maurice Chalumeau en sciences des sexualités»(CMCSS).   Son inauguration aujourd’hui, 17 novembre 2020, commémore les cinquante ans de l’acceptation du legs de Maurice Chalumeau par l’UNIGE. On rend ainsi hommage à la générosité et à l’esprit résolument pionnier du philanthrope genevois, persuadé que les savoirs ont la capacité de vaincre les «traditions» et «préjugés» discriminants qui pèsent sur les sexualités.   La crise sanitaire que traverse le monde aujourd’hui touche assurément aussi les manières dont les sexualités sont vécues. Or ce nouveau Centre a justement pour vocation, parmi celles qu’il fait siennes, de contribuer à comprendre la nature et la portée des crises dans la sphère de l’intime.   Ces temps si difficiles empêchent que cette inauguration, fruit d’un long processus, soit marquée par un évènement public. Mais, les activités de recherche et de formation, ainsi que les projets en lien avec la Cité du «Centre Maurice Chalumeau en sciences des sexualités» sont d’ores et déjà lancés.     Avec mes meilleures salutations,   Yves Flückiger Recteur    

Visionnez la vidéo de présentation du Centre
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ECtHR criticises Switzerland over gay Gambian

ECtHR criticises Switzerland over gay Gambian

The European Court of Human Rights has ruled against Switzerland’s intended deportation of a homosexual Gambian man, saying Switzerland has not properly examined the risks to which the man would be exposed. In a decision handed down on Tuesday, the court unanimously decided that this would violate Article 3 of the European Convention on Human Rights, which bans inhuman and degrading treatment. The Swiss Federal Court had considered in 2018 that the man’s family network would be enough to protect him from harmful treatment and that the situation of homosexuals in Gambia had improved. The European judges disagreed. They said Switzerland should have made sure that local authorities there were “willing and able” to protect the man against possible mistreatment by non-state actors. The European court decision rests notably on opinions of the British home office and third parties saying Gambian authorities currently refuse to grant protection to LGBT people. The decision may be..

Read: https://www.swissinfo.ch/eng/society/human-rights-court-criticises-switzerland-over-gay-gambian-/46167022

EU presents first-ever LBGTIQ equality protection strategy

EU presents first-ever LBGTIQ equality protection strategy

EU presents first-ever LBGTIQ equality protection strategy

The European Union’s executive Commission presented its first strategy on Thursday to protect lesbian, gay, bisexual, trans, non-binary, intersex, and queer (LGBTIQ) equality, proposing to extend the list of EU crimes to cover hate crime and ensure that EU policymaking reflects LGBTQI concerns.

Commission President Ursula von der Leyen announced the plan in her 2020 State of the Union Address. The proposal aims to strengthen equality and non-discrimination in the EU, noting that discrimination against LGBTIQ individuals has increased in the EU in recent years. The Commission cited survey figures showing that 43% of LGBT people said they felt discriminated against last year. Further, the strategy stated that “right-wing governments in Poland and Hungary have become increasingly homophobic in the past year.” The Commission also noted that the COVID-19 pandemic has only exacerbated discrimination against LGBTIQ people. The strategy sets out several of targeted actions that the EU will mainstream into all EU policies, legislation, and funding programs for the next five years.

The Commission stated that it would promote the use of government funding to improve the socio-economic position of LGBTIQ people and gather evidence regarding the barriers to full equality experienced in employment, education, and healthcare. Notably, the Commission stated that in 2021 it would present an initiative to extend the list of EU crimes to cover hate crime and hate speech when targeted at LGBTQI people. The measure also seeks to ensure that the legal status of LGBT relationships cannot be revoked when they cross borders.

The strategy builds upon the Commission’s List of Actions to Advance LGBTI Equality and other European Commission strategic frameworks designed to end discrimination based on race and gender. EU Commission Vice-President Vera Jouorova stated, “[w]e will defend the rights of LGBT people against those who now have more and more appetite to attack them from this ideological point of view.”

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ECtHR: Refusal to grant applicant contact rights in respect of child born to her ex-partner using assisted reproductive techniques: no violation of the Convention

ECtHR: Refusal to grant applicant contact rights in respect of child born to her ex-partner using assisted reproductive techniques: no violation of the Convention

In today’s Chamber judgment1 in the case of Honner v. France (application no. 19511/16) the European Court of Human Rights held, unanimously, that there had been: no violation of Article 8 (right to respect for family life) of the European Convention on Human Rights. The case concerned the refusal to award contact rights to the applicant in respect of the child which had been born to her former partner in Belgium using assisted reproductive techniques while the two women were a couple, despite the fact that the applicant had raised the child during his early years. The Court found in particular that by rejecting the applicant’s request on grounds of the child’s best interests and by duly giving reasons for the decision, the French authorities had not failed to fulfil their positive obligation to guarantee effective respect for the applicant’s right to respect for her family life.

Principal facts
The applicant, Rachel Honner, is a French national who was born in 1966 and lives in Paris (France). The child, G., was born in 2007 after the applicant and her former partner, C., decided to start a family. The couple had been living together since 2000 and had entered into a civil partnership in April 2009. The child was brought up by both women until their separation in May 2012.

A few weeks after their separation, Ms Honner’s former partner objected to the continuing relationship between her child and the applicant. The applicant applied to the family judge for visiting and staying contact rights, which were granted by the tribunal de grande instance. The judge took the view that the child’s birth had been the result of a joint family project on the part of the couple and that the applicant had been committed to the child since he was born.
The applicant’s former partner appealed against the judgment of the tribunal de grande instance, which was overturned. The Paris Court of Appeal found that the meetings between the applicant and the child were excessively traumatic for the child and that granting contact rights to Ms Honner was therefore contrary to his best interests. Ms Honner lodged an appeal on points of law with the Court of Cassation, without success.
In the meantime, in response to a complaint filed by Ms Honner, the first-instance disciplinary board of the Ile-de-France Medical Association had issued a reprimand to the doctor who had drawn up
certificates produced by the applicant’s former partner in the Court of Appeal proceedings. The
disciplinary board found that the certificates had been biased and had contained statements about
facts that the doctor himself could not have known.
1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,
any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges
considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final
judgment. If the referral request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.
Further information about the execution process can be found here: http://www.coe.int/t/dghl/monitoring/execution.
2
Complaints, procedure and composition of the Court
Relying on Article 8 of the Convention (right to respect for family life), the applicant alleged that the
refusal to grant her contact rights in respect of her former partner’s son, whom she had raised
during his early years, had breached her right to respect for her family life.
The application was lodged with the European Court of Human Rights on 7 April 2016.
Judgment was given by a Chamber of seven judges, composed as follows:
Síofra O’Leary (Ireland), President,
Stéphanie Mourou-Vikström (Monaco),
Latif Hüseynov (Azerbaijan),
Jovan Ilievski (North Macedonia),
Lado Chanturia (Georgia),
Ivana Jelić (Montenegro),
Mattias Guyomar (France),
and also Victor Soloveytchik, Section Registrar.
Decision of the Court
Article 8 (right to respect for family life)
The child G. had been raised by the applicant and C. after they had decided to start a family. They
had lived together from 2000 until their separation in May 2012. The Court noted that the ties which
had developed between the applicant and G. during the four and a half years they had lived together
constituted family life within the meaning of Article 8.
The Court found that the bond between the child and the applicant had been impaired not by a
decision or act of the public authority but as a result of the applicant’s separation from her former
partner. The domestic court had not abolished a visiting and staying contact right which the
applicant could have claimed in respect of the child, but had rejected the applicant’s application on
the basis of the second paragraph of Article 371-4 of the Civil Code, under which the family judge
was entitled to determine the arrangements for the maintaining of relations between a child and
persons other than his or her ascendants if that was in the child’s interest. The Court therefore
examined the case from the perspective of the positive obligation of States Parties to ensure that
persons within their jurisdiction enjoyed effective respect for their family life, rather than from the
perspective of their obligation not to interfere with the exercise of that right.
The Court reiterated that a fair balance had to be struck between the competing interests of the
individual and of society as a whole. The States Parties enjoyed a certain margin of appreciation,
which was broad where the public authorities had to strike a balance between competing private
and public interests or between different rights protected by the Convention. This had been the case
here, in particular since it was not only the right to respect for the applicant’s family life which had
been at stake, but also the principle of the best interests of the child, and the rights of both G. and
C., her former partner, under Article 8 of the Convention.
The Court observed that French law allowed a person who had developed a de facto family
relationship with a child to seek measures to preserve that relationship. The French legal framework
thus entitled the applicant to seek judicial review of the question whether she could preserve the
ties that she had developed with G., and she had duly made use of that remedy. The Court noted
that the Paris Court of Appeal had held that the child’s meetings with the applicant had been too
traumatic for him and that it was therefore not in his interest to pursue them. Its decision had
therefore been based on the child’s best interests.
3
The Court of Appeal had noted that G., a fragile child, had found himself in a traumatising and
guilt-ridden situation, at the centre of a conflict between the applicant and his biological mother,
who were unable to communicate with each other without being aggressive. It had also noted that
there was no smooth handover of the child from one to the other and that G. had been reluctant to
go to the applicant’s home. The Court could not call into question the conclusion that the Court of
Appeal had reached from these findings, namely that it was not in the child’s interest to continue
meeting the applicant.
The Court also noted the applicant’s complaint that the Court of Appeal had not taken account of
the documents she had produced and that it had relied exclusively on attestations from C.’s relatives
and on certificates of convenience, including those drawn up by a doctor for which he was
reprimanded by the Medical Association’s disciplinary board because they referred to facts which he
himself could not have known. However, there was nothing to suggest that the Paris Court of Appeal
had failed to take account of the evidence produced by the applicant. As to the certificates whose
reliability was in issue, the Government pointed out that it was clear from the Court of Appeal’s
judgment that it had not relied decisively on them.
As to the applicant’s view that the Paris Court of Appeal could have organised supervised meetings
between G. and herself, this was contradicted by the Court of Appeal’s finding that, because of the
particularly tense relations between the two women, putting the child in a traumatic situation, it
was not in the child’s interest to make arrangements for such contact between him and the
applicant.
The Court understood the distress that the applicant could have been caused by the situation at
issue and by the response of the Paris Court of Appeal. However, it was of the view that the
applicant’s rights could not take precedence over the best interests of the child.
Further having regard to the broad margin of appreciation afforded to the authorities in such
matters, the Court concluded that the respondent State had not failed to fulfil its positive obligation
to guarantee effective respect for the applicant’s right to respect for her family life.
There had therefore been no violation of Article 8 of the Convention.
The judgment is available only in French.
This press release is a document produced by the Registry. It does not bind the Court. Decisions,
judgments and further information about the Court can be found on http://www.echr.coe.int. To receive
the Court’s press releases, please subscribe here: http://www.echr.coe.int/RSS/en or follow us on Twitter
@ECHR_CEDH.
Press contacts
During the new lockdown, journalists can continue to contact the Press Unit via
echrpress@echr.coe.int
Denis Lambert
Tracey Turner-Tretz
Inci Ertekin
The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member
States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

USA: Federal appeals court rejects challenge to Harvard’s affirmative action policy

USA: Federal appeals court rejects challenge to Harvard’s affirmative action policy

The US Court of Appeals for the First Circuit on Thursday rejected claims from a group representing Asian Americans arguing that Harvard’s affirmative action policy discriminated against them.

Students for Fair Admissions (SFFA) brought suit against Harvard in November 2014, challenging the college’s “race-conscious” undergraduate admission process as a violation of Title IV of the Civil Rights Act. The district court found that Harvard’s admission process did not violate Title IV and that SFFA lacked standing to bring their claims. The First Circuit found that SFFA had associational standing, but Harvard’s “race-conscious” admissions program did not violate Title IV.

In her opinion, Judge Sandra Lynch wrote that plaintiffs did not show that Harvard “treated members of one race differently and less favorably than members of another race and that the defendant did so with a racially discriminatory purpose.” In addition, she noted that Harvard’s consideration of race in its admissions program survives strict scrutiny. While Harvard’s use of race must further a compelling interest, the Supreme Court has held that “attaining student diversity may be a compelling interest.” Lynch opined that race is one piece of Harvard’s interest in diversity. It is considered as part of a broader effort to achieve exposure to widely diverse people, cultures, ideas, and viewpoints.” Further, Harvard’s use of race was narrowly tailored to achieve its goals.

Supreme Court precedent makes clear that the fact that Harvard’s application process is subjective is insufficient to overcome other evidence in the record that Harvard is nor biased against Asian Americans and does not stereotype them. First, there is no requirement that universities use entirely objective criteria when considering race to admit applicants. Harvard presented testimony from multiple admissions officers that its admission process, though subjective, did not facilitate bias or stereotyping. The nature of Harvard’s admissions process, as the district court recognized, offset any risk of bias. An applicant must secure a majority of votes at a full-body admission committee meeting with forty admissions officers to be admitted to Harvard, which mitigates the risk that any individual officer’s bias or stereotyping would affect Harvard’s admissions process.

An appeal to the US Supreme Court is expected.

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Hungary drafts legislation to ban adoption for same-sex couples

Hungary drafts legislation to ban adoption for same-sex couples

The Hungarian government on Tuesday introduced legislation that would ban adoption for same-sex couples.

Under the new legislation, adoption will only be legal for same-sex couples if one partner applies as a single person. The legislation will only recognize families between married partners where the mother is a female, and the father is male.

Justice Minister Judit Varga submitted the amendment to parliament. Her party also submitted an amendment requiring children to be raised with a Christian interpretation of gender roles.

The new amendment follows Hungary’s March amendment to ban legal recognition of transgender and intersex citizens, only recognizing a person’s gender as the gender assigned at birth.

Hungary has increased its anti-LBGT sentiment during the pandemic, claiming the new laws protect children’s rights.

Human rights groups expressed their outrage, urging the government to repeal these new amendments.

“International human rights treaties that Hungary is party to clearly prohibit any forms of discrimination on the grounds of sex, gender orientation and sexual identity,” Amnesty International said in their statement. “Politicians, including the Speaker of the Parliament, and certain public figures have increasingly targeted LGBTI people with homophobic and discriminatory comments.”

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