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Interesting Article: Repost of “Somewhere Over The Rainbow” (Konstantinos Lamprinoudis on Verfassungsblog) [CJEU Commission v. Hungary]

In the original version of the world-renowned musical film “The Wizard of Oz”, the young protagonist Dorothy sings of her wish to escape her currently troubled world and flee to a better place “somewhere over the rainbow”. A similar vision of an ideal “rainbow land” – where all people can enjoy their rights without risk of discrimination – informs the European Commission’s aspiration to make the European Union a safe and inclusive space for sexual and gender minorities (“LGBTIQ”). It is thus no wonder that the Commission launched an infringement procedure against the Hungarian Law LXXIX of 2021 which restricts access of minors to content which “promotes or portrays divergence from self-identity corresponding to the sex assigned at birth, sex change or homosexuality” (known as the “child protection” or “anti-LGBTIQ” law). The procedure culminated to a landmark dispute before the EU Court of Justice in Commission v. Hungary, with the Opinion of Advocate General Ćapeta delivered on 5 June 2025.

What is striking, at least at first sight, is the way in which this case has been framed: despite the blatantly discriminatory nature of Hungary’s legislation, the Commission’s arguments revolve around the violation of several internal market provisions relating to the free movement of services along with certain fundamental rights enshrined in the Charter as well as the values of Article 2 TEU. In my view, however, Commission v. Hungary constitutes a discrimination case in disguise, as Ćapeta’s Opinion confirms. I argue that non-discrimination considerations have been purposively “camouflaged” in the present dispute in order to effectively safeguard the rights of sexual and gender minorities under EU law, given the limited scope of LGBTIQ protection in EU non-discrimination and equality law.

Accordingly, my analysis here offers an EU equality law perspective on the case, leaving aside other important issues raised that have already attracted a great deal of scholarly attention, most prominently the Commission’s unprecedented use of Article 2 TEU as a standalone plea (see e.g. Kaiser, Spieker, Kaiser, Okunrobo, Bonelli and Claes, Riedl, and Rossi).

The limited scope of LGBTIQ protection under EU non-discrimination and equality law

Discrimination cases at EU level are traditionally adjudicated on the basis of EU non-discrimination and equality law. This comprises a set of Directives (the so-called “Equality Directives”) as well as Articles 20 and 21(1) of the Charter, and is notoriously founded on a hierarchy of discrimination grounds, in the sense that certain personal traits (racial/ethnic origin and sex) enjoy a higher level of protection than others (disability, age, sexual orientation and religion) (see Howard). Accordingly, when it comes to discrimination against members of the LGBTIQ community, the protection granted by EU law falls under different legal frameworks and thus varies depending on whether the discriminatory treatment is based on sexual orientation or sex.

More specifically, the prohibition of discrimination on grounds of sexual orientation (i.e. against gay, lesbian or bisexual persons) applies only in the field of employment and occupation pursuant to Directive 2000/78/EC. This is why all cases of discriminatory treatment of homosexuals adjudicated by the CJEU so far concerned solely employment matters (see Maruko, Römer, Hay, NH, Asociaţia Accept), including self-employed activities (see TP). In 2008, the Commission proposed a horizontal Directive which would extend the protection against discrimination irrespective of sexual orientation beyond the labour market. However, the proposal has not reached unanimity in the Council as required by Article 19 TFEU and remains blocked since then (see European Parliament), facing now the risk of being withdrawn due to lack of “foreseeable agreement” between the Member States (see Annex IV of 2025 Commission’s work programme).

As regards the protection of individuals against discrimination on the basis of their gender identity, gender expression or sex characteristics (e.g. trans, non-binary, intersex individuals, etc.), the relevant point of reference is EU gender equality legislation. Following the Court’s ruling in P v. S (further confirmed in KB, Richards and MB), discrimination against trans persons arising from their gender reassignment has been recognised as a form of sex discrimination, with that case law being now codified in recital 3 of Directive 2006/54/EC and recital 5 of Directive (EU) 2024/1500. Hence, people who have undergone gender reassignment can benefit from equal treatment not only in the workplace (Directive 2006/54/EC and Directive 2010/41/EU), but also in a wide range of areas encompassing access to and supply of goods and services (Directive 2004/113/EC) as well as social security (Directive 79/7/EEC). However, as noted by Marcia, the protection against discrimination in this regard seems to be based on a “medicalised understanding” of gender identity, concerning only those individuals who have undergone surgical treatment. As such, the existing anti-discrimination protection excludes a significant percentage of the trans population as well as other gender minorities (e.g. intersex people). However, the CJEU’s recent judgment in Mousse suggests that sex discrimination may also extend to trans individuals who have not undergone a physical change of gender (see Opinion of AG Ćapeta in Commission v. Hungary, para. 62). In any case, although gender identity, gender expression and sex characteristics feature explicitly among the list of traits defining “victims” of sex discrimination under Directive (EU) 2024/1500, it is still unclear whether all the persons affected are covered by the existing legal framework absent any case law on the matter (see European Parliamentary Research Service 2025).

As for Article 21(1) of the Charter enshrining the prohibition of discrimination on any ground including sex and sexual orientation (but not explicitly gender identity or characteristics), it also has a limited scope despite its seemingly open-ended wording, applying solely to the actions of EU institutions and those of the Member States when they are implementing EU law, by virtue of Article 51(1) of the Charter. In fact, the only time Article 21(1) has been mentioned to date in litigation involving discrimination against LGBTIQ minorities was in Léger concerning the implementation of Directive 2004/33/EC. In this case, the CJEU concluded that a French law which entailed a permanent contraindication to blood donation for homosexual men discriminated against them on the grounds of their sexual orientation, subject to justification under Article 52(1) of the Charter.

The threefold guise of non-discrimination considerations

These limits of EU non-discrimination and equality law may explain why the far-reaching discriminatory effects of Hungarian legislation for the LGBTIQ community could not have been fully captured on that legal basis, thereby “forcing” the Commission to opt for a different path. Be that as it may, non-discrimination considerations are abundantly present in Commission v. Hungary, albeit under a threefold guise that corresponds to the three-level structure of the Commission’s argumentation, namely the breach of (1) internal market legislation, (2) Charter-based rights, and (3) the values of Article 2 TEU.

Internal market legislation

Pursuant to the so-called “horizontal equality clause” of Article 10 TFEU, combatting discrimination based, among others, on sex or sexual orientation is relevant to all policy areas of EU law, even in those not necessarily associated with equality and even where no specific equal treatment provisions exist, thereby diversifying the forms of equality promotion within the EU (see Timmer and Muir, Davio and van der Meulen). Against this background, it is unsurprising that the CJEU increasingly relies on economic instruments to achieve equality objectives in favour of LGBTIQ individuals, as observed by Baillet. This trend is particularly evident in the field of data protection and free movement law, where persons belonging to sexual or gender minorities were granted protection by reference to the GDPR (see Mousse and Deldits), or by relying on Articles 20 and 21 TFEU and the Citizenship Directive (see Coman, Pancharevo and Mirin), respectively.

In the case of Commission v. Hungary, among the various internal market provisions relied on by the Commission, the only one expressly granting protection to LGBTIQ persons against discrimination is Article 9(1)(c)(ii) of the Audiovisual Media Services Directive (see Baillet). Nevertheless, all the rules of primary and secondary law relating to free movement of services (i.e. those contained in the Audiovisual Media Services Directive, the e-Commerce Directive, the Services Directive and Article 56 TFEU) that Hungary violated according to the Commission sufficed to bring the case within the ambit of EU law, thus triggering the applicability of the Charter as per its Article 51(1). In this regard, AG Ćapeta recalled that any derogations from the freedom to provide services must respect fundamental rights (para. 284 with reference to the line of case law following ERT) and concluded that the Hungarian legislation contravenes multiple EU law provisions on free movement of services in an unjustified manner (paras. 277-340).

Charter-based rights

Apart from the above internal market instruments, the Commission claimed that the Hungarian rules violate the fundamental rights to human dignity (Article 1), private life (Article 7), freedom of expression (Article 11) and non-discrimination (Article 21) of the Charter. Whereas the invocation of the latter right is unsurprising, being the only one explicitly related to equality considerations, the reference to the other rights is perhaps striking. Yet, these rights have been also deployed by the CJEU in the past to grant protection to LGBTIQ persons: for instance, the Court linked the recognition of sex discrimination on the basis of transgender identity to the respect of dignity in P v. S even before the adoption of the Charter; it further recognised free movement rights of rainbow-families on the basis of Article 7 Charter in Coman and Pancharevo. Similarly, the Court ruled in NH that discriminatory statements about homosexuals in matters of employment are not covered by the employer’s freedom of expression under Article 11. The CJEU’s approach in these cases explicitly draws on the rich case law of the ECtHR which has predominantly relied on the rights to private life and freedom of expression under Articles 8 and 10 ECHR, respectively, taken separately or in combination with Article 14 ECHR on non-discrimination to ensure effective protection of LGBTIQ individuals.

In her Opinion in Commission v. Hungary, AG Ćapeta fully sided with the Commission’s position about all the alleged fundamental rights infringements. Starting with Article 21 of the Charter as the guiding provision of her argumentation, she observed that, by creating a difference in treatment between heterosexual and cisgender persons in comparison to LGBTIQ persons, the Hungarian provisions are clearly based on the prohibited criteria of sex and sexual orientation and, as such, are directly discriminatory (paras. 67-69).

Most importantly, the AG emphasised the stigmatising effects for the members of LGBTIQ minorities that result from Hungary’s legislation, undermining the very nature of the principle of equality. She noted that these effects are further aggravated due to the merging of the rules in question with those concerning the protection of children from paedophilia (paras. 73-81).

In a similar vein, by interpreting Articles 7 and 11 of the Charter in light of their ECHR counterparts, AG Ćapeta found that the contested rules interfere with the freedom of expression and information (paras. 84-93), while also severely affecting the private lives of LGBTIQ individuals through the creation of a hostile climate towards them in Hungary (paras. 94-102). Accordingly, the AG concluded that the fundamental rights restrictions in question cannot be justified pursuant to Article 52(1) of the Charter (paras. 103-133), thus giving rise to a violation of human dignity under Article 1 thereof (paras. 134-141).

Interestingly, AG Ćapeta’s analysis expressly underlines the harmful effects of the Hungarian provisions not only for the LGBTIQ community itself but also for the general public. In line with the doctrine of discrimination by association (see e.g. CHEZ), she argued that the prohibition on the provision of or access to LGBTIQ content affects natural and legal persons in general (e.g. any service provider or service recipient), regardless of the victims’ belonging to sexual or gender minorities (paras. 66 and 72). This confirms that, contrary to the ECtHR’s findings on Article 14 ECHR in the similar case of Macatė v. Lithuania (see para. 221 and dissenting opinion), Article 21(1) of the Charter captures discriminatory restrictions on pro-LGBTIQ content as such.

Similarly, in the AG’s view, the interference of the contested rules with the freedom of expression concerns anyone wishing to impart or receive pro-LGBTIQ information (paras. 88-89) and results in breaching the dignity of anyone who is prevented from treating LGBTIQ persons equally with the rest of society due to the prohibition at issue (para. 138). By highlighting these broader societal implications of the Hungarian legislation, AG Ćapeta clarified that such serious and systemic discrimination against certain minority groups in a given Member State amounts to an overall deviation from the EU’s constitutional model of society as expressed in Article 2 TEU (paras. 155-157 and 265), thus linking the fundamental rights infringements at issue with the breach of EU values discussed subsequently in her Opinion.

Article 2 TEU values

Turning to Article 2 TEU, the question whether it can be used as a self-standing ground of infringement of EU law goes beyond the scope of my present analysis. What is worth noting, though, is that Commission v. Hungary constitutes the very first discrimination dispute relying on the Treaty provision on EU values. This is all the more remarkable given that the level of protection granted to LGBTIQ rights largely differs among Member States, thus raising the question whether the prohibition of discrimination against sexual and gender minorities can be plausibly considered a “common” EU value at all (see Bonelli and Claes).

Although AG Ćapeta acknowledged the sensitive and contested nature of LGBTIQ equality for some European societies (paras. 83, 259, 263-264), she emphatically argued that disrespect and marginalisation of an entire societal group are “the ‘red lines’ imposed by the values of equality, human dignity and respect for human rights” (para. 262). In her view, the prohibition of discrimination on grounds of sex or sexual orientation constitutes a choice that is “firmly rooted in the EU constitutional framework”, as expressed in Articles 21 of the Charter and 19 TFEU. Thus, the question is not “if” equality on those grounds should be guaranteed, but rather “how” – with its implementation potentially varying among different Member States (paras. 82 and 263). Consequently, by reflecting the idea that members of the LGBTI community are “an unwanted part of society”, the Hungarian legislation at issue results in “negating” the values of Articles 2 TEU, as specified by the fundamental rights of Articles 1, 7, 11 and 21 of the Charter which she deemed violated (paras. 265-271).

Never before had a violation of the Charter’s right to non-discrimination been found to contravene the values of equality, tolerance and human dignity set out in Article 2 TEU (para. 268). This development seems to build upon the CJEU’s obiter dictum in Hungary v. Parliament and Council (paras. 157-158) stating that the scope of the values of equality and non-discrimination is defined by Articles 20 and 21 of the Charter as well as by Articles 10 and 19(1) TFEU. Moreover, it is well-established case law that the principle of equal treatment enshrined in Article 20 of the Charter constitutes a general principle, of which the principle of non-discrimination laid down in Article 21(1) of the Charter is a particular expression (see e.g. Glatzel, para. 43). Taken together, one may conclude that the AG’s findings in Commission v. Hungary mark the apex of the constitutionalisation of equality and non-discrimination within the EU legal order – they are now clearly utilised not only as general principles, but also as judicially enforceable values.

Conclusion

As now fully endorsed by AG Ćapeta, the “disguised” discrimination case against Hungary seeks to protect LGBTIQ people through the back door, bypassing ingeniously the restrictive scope of the EU Equality Directives. Should the CJEU uphold this approach, the same tools could be also deployed to tackle other forms of blatant and generalised State actions against the LGBTIQ community, such as Hungary’s recent legislative ban on Pride parades. As such, Commission v. Hungary constitutes yet another notable example of the recent judicial trend observed above: EU non-discrimination and equality law appears to progressively concede its role in upholding LGBTIQ rights to alternative legal instruments. This confirms that the currently existing EU rules against discrimination have reached their limit, failing to provide sufficient protection to sexual and gender minorities. Thankfully, though, different tools available under EU law prove to be an effective substitute to achieve the envisaged level of LGBTIQ equality. Under these circumstances, absent a comprehensive equality framework at EU level, the “rainbow-coloured” utopia promised by the Commission is to be inevitably sought somewhere else… over non-discrimination law.

The post Somewhere Over The Rainbow appeared first on Verfassungsblog.

Russia bookstore fined for LGBTQA+ ‘propaganda’ by selling books

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Russia bookstore fined for LGBTQA+ ‘propaganda’ by selling books

A Moscow court fined the bookstore Falalster 800,000 rubles (approximately $10,000) and its founder, Boris Kupriyanov, 100,000 rubles (approximately $1,300) on the charges of LGBTQA+ “propaganda,” according to local media.

Charges were reportedly based on the bookstore selling books like More Happy Than Not by Adam Silvera, Satanic Feminism by Per Faxneld, Fruit of Knowledge by Liv Strömquist, The Miseducation of Cameron Post by Emily M. Danforth, and Fence: Volume Two by C.S. Pacat. The court found that the removed literature “propagandizes non-traditional relationships and sex change.”

Kupriyanov plead not guilty, elaborating that the books are not banned, are not found on prohibited or extremist lists, and were not deemed “problematic” until the trial. He also questioned the expertise of the expert used to determine the “problematic” nature of the books, stating that he is unaware of their level of education and that, in some cases, the “problematic” parts of the books were taken out of context.

The founder of the bookstore also criticized the trial process, sharing that he was not aware of the expertise analysis taking place or of the rights that he is entitled to. Kupriyanov concluded with a challenge, rationalizing that the expert needs to read all 38,000 books sold in the bookstore to make sure that there are no other complaints.

Falalster was fined 80,000 rubles (approximately $1,000) and Kupriyanov 40,000 rubles (approximately $500) earlier this year for selling “On the Way to Magadan” by Belarusian anarchist Ihar Alinevich. The book was registered as “undesirable” in 2024. Kupriyanov pled not guilty then as well, noting that the publication of the book was incorrectly identified on the Ministry of Justice’s “undesirable” booklist.

Bookstores in Russia have been facing intensified prosecution for the sale of “undesirable” books, with books accused of “LGBTQA+ propaganda” currently taking the spotlight. Earlier this month, a Saint Petersburg Court announced a case against bookstore Подписные издания (Subscription Editions) on the aforementioned charges. The bookstore was previously fined 800,000 rubles (approximately $10,000) on the same charges. In May of this year, employees of publishing houses Eksmo and Popcorn Books were arrested amidst a LGBTQA+ “propaganda” investigation.

The post Russia bookstore fined for LGBTQA+ ‘propaganda’ by selling books appeared first on JURIST – News.

Interesting Article – Repost: Laboratories of Authoritarianism [U.S. Supreme Court]

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Interesting Article – Repost: Laboratories of Authoritarianism [U.S. Supreme Court]

by Sarah Medina Camiscoli

In Mahmoud v. Taylor, the U.S. Supreme Court expanded the 1st Amendment Free Exercise Clause to grant conservative religious parents a constitutional right to remove their children from any classroom where a teacher includes LGBTQAI+ people in the curriculum. In effect, the Court has allowed public schools to discourage mutual tolerance, parents to opt out of Equal Protection, and fringe legal strategists to continue to use children’s constitutional rights as a test case for authoritarianism. Youth rights provide fertile ground for authoritarian policies as young people are a vulnerable population, their autonomy is almost entirely up to the discretion of their parents and the state, and lawmakers can easily cloak their desires to remake government institutions under the guise of care, protection, and parent rights. However, youth rights are not entirely separate from those of the rest of society – and the erosion of children’s rights becomes the foundation upon which other rights are eroded.

Constitutional test subjects

Today, a transgender girl in 4th grade can wake up to news anchors discussing how the highest court in the land ruled in Mahmoud v. Taylor that schools may not read books that include trans voices or celebrate families and friends who embrace girls like her. When that 4th grader arrives at school, she might see Mahmoud in action when her teacher hastily moves her peers to different classrooms before reading a book with trans characters because parents must provide “permission” for their children to even acknowledge trans lives. In many states, that same young person will learn that her doctor can no longer provide her with gender-affirming medical treatment because of the Supreme Court’s ruling in Skrmetti v. United States. If that young person seeks a counselor to work through the psychic harm of these experiences at school or in doctors offices, the counselor might tell her that trans people do not exist, that her parents are causing harm by providing affirming education and healthcare, and suggest that she consider conversion therapy in a local church. And if the child and her guardian challenge that practice as unethical and harmful, that therapist might be able to assert that the Supreme Court interpreted the First Amendment to develop a constitutional right to do so in Chiles v. Salazar. Keep in mind that this child cannot vote, run for office, and make campaign contributions (but, ironically, she can work certain jobs and pay taxes). This child is not learning in a healthy democracy. She is living as the constitutional test subject of legal strategists.

Scholars of authoritarianism discuss two “soft guardrails” of democracy: 1) “mutual toleration” — a shared understanding that people and parties with different views and values must respect one another as legitimate to promote and uphold democratic institutions; and 2) “forbearance” — the understanding that government actors must demonstrate restraint in their roles to promote checks and balances on state power. These “norms of toleration and restraint” are what keep people with different politics, values, and lifestyles from trying to destroy one another; and the place where they are most often taught and learned are in public schools. But the Court has allowed fringe legal strategists to decay those norms and attack public education, in many cases using children’s rights to further polarize political parties, dismantle social welfare, and entangle courts in culture wars. The Supreme Court has ruled in favor of these legal strategists to roll back a variety of children’s rights which in turn erode rights, resources, and liberties for everyone. Their success includes eroding bodily autonomy at the site of the constitutional rights of undocumented children (Azar v. Garza (2018)), attacking healthcare at the site of the constitutional rights of transgender children (United States v. Skrmetti (2025)), shrinking higher education at the site of constitutional rights of students of color (Students for Fair Admissions (SFFA) v. Harvard (2023)), and now, decimating equal protection and public education at the site of constitutional rights of LGBTQAI+ elementary school students (Mahmoud v. Taylor (2025)). Legal strategists have realized that the rights of vulnerable children provide the perfect site to experiment with culture wars and unquestioned obedience to authorities. Given the success of these experiments, I have developed the term laboratories for authoritarianism to describe how children’s constitutional rights have become a vehicle for fringe legal strategists to craft jurisprudence that undermines democracy and promotes authoritarianism.

Mahmoud v. Taylor provided a particularly powerful vehicle for this project as it attacked constitutional rights within public schools. Public schools are a battleground for democracy, as they are the single institution where the most people spend the most time in the United States. They serve as “the most pervasive means for promoting our common destiny.” (Sotomayor, dissenting, at 1, Mahmoud v. Taylor). In eroding constitutional rights for such a vulnerable group in a stronghold of democracy, Mahmoud obstructs public schools from promoting mutual toleration or teaching an accurate understanding of the Constitution among some of our nation’s most vulnerable children.

Denying marriage equality in public schools

The majority opinion first discourages public schools from promoting mutual toleration and understanding their constitutional rights by asserting the following message infringes on the religious liberty of parents: “Two people can get married, regardless of whether they are of the same or opposite sex, so long as they “love each other.” (Mahmoud v. Taylor at 23). According to the majority, celebrating the constitutionally protected marriage between people of the opposite sex is acceptable, but celebrating the constitutionally protected marriage between two people enshrined in Obergefell v. Hodges may cause “destruction” for religious communities. While the dissent describes this reasoning as pure “absurdity,” the decision will discourage public schools from affirming the constitutionally protected right to marriage equality or promoting mutual toleration of marriage traditions and norms across religious and cultural identities. In enshrining this absurdity in the Constitution, the Court also undermines the intolerance against the children of LGBTQAI+ couples explicitly rejected in Windsor v. United States (2013). In effect, the Court encourages public schools to erode mutual tolerance and constitutional literacy by invisibilizing the constitutional rights of LGBTQAI+ families, “mak[ing] it even more difficult for [] children to understand the integrity and closeness of their own family and its concord with other families in their community and their daily lives.” Amicus Brief for Students Engaged in Advancing Texas at 29 (citing Windsor).

Disregarding constitutional protections against discrimination

The majority further discourages public schools from promoting mutual toleration and accurate understandings of constitutional rights when recasting the following message as another unconstitutional burden on religious liberty: “Sex and gender are [not always] inseparable” (Mahmoud v. Taylor at 3). In terms of mutual toleration, the majority “fail[s] to accept and account for a fundamental truth: LGBTQ people exist. They are part of virtually every community and workplace of any appreciable size.” (Sotomayor dissenting, at 21). By asserting that the Free Exercise clause “requires the government to alter its programs to insulate students from that “message,” the Court forecloses the possibility of schools teaching public school students, especially those who currently or may later identify as LGBTQAI+, about their constitutional rights to Equal Protection.

For example, in Bostock v. Clayton County, the Court determined that it is impossible to discriminate against homosexual or transgender people without engaging in sex discrimination. See Brief for Students Engaged in Advancing Texas et al. as Amici Curiae 24. However, under Mahmoud, a school cannot affirm that gender and sex are separable, foreclosing the possibility of a public school student even conceptualizing the idea of LGBTQAI+ people existing with constitutional rights. To teach an accurate understanding of the Constitution and basic rights in this country, public schools would need to have the authority to explain that LGBTQAI+ people exist and that “the differential treatment by the state” as compared to heteronormative or cisgender should “amount[] to impermissible sex discrimination under Equal Protection.” Amicus brief for Students Engaged in Advancing Texas at 24. However, the Court instructs schools to neglect existing constitutional protections for isolated minorities like the LGBTQAI+ community and, in some ways, encourage students to further erode them. In doing so, the Court allows for the further decay of Equal Protection and mutual toleration — an indispensable guardrail for what remains of our democratic institutions.

Looking forward

While the majority emphasizes that the holding of Mahmoud v. Taylor applies specifically to the context of storytime with “impressionable children,” that is plainly untrue. The Court’s willingness to take up cases like Mahmoud, Skrmetti, and Chiles v. Salazar within a single year reveals a willingness to entertain experiments in democratic backsliding. More importantly, LGBTQAI+ families in and outside of public schools will continue to feel the impact of the constitutional rot of Equal Protection and mutual toleration for generations to come. In coming months, the Court will rule on whether to expand the Free Exercise Clause to therapy sessions. If it decides that it does, mental health counselors may hold a constitutional right to suggest conversion therapy to an LGBTQAI+ fourth grader in the same school where parents hold a constitutional right to facilitate a mass exodus when LGBTQAI+ lives are mentioned in the classroom. And if that is not enough, it is only a matter of time before one of the university complaints seeking relief from the Trump administration’s university funding freezes reaches the Court. Then, five justices will decide whether the government can also restrict college students from learning and celebrating topics too controversial for storytime in K-12 schools.

If the conservative fringe has focused on children’s constitutional rights as the site for its political-legal project, defenders of constitutional democracy must do the same.

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Jeremiah Chin: Silencing Children’s Rights (Repost from Verfassungsblog) – United States

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Jeremiah Chin: Silencing Children’s Rights (Repost from Verfassungsblog) – United States

The U.S. Supreme Court decided Mahmoud v. Taylor on June 27, 2025. In doing so, it dramatically expanded parental rights over students and education without concern for the rights of children or consideration of pedagogy and curriculum. While the current era of the Supreme Court under Chief Justice John Roberts has repeatedly blurred lines dividing religious groups and state power under the First Amendment, Mahmoud rewrites the First Amendment for children entirely. The Court concluded that the government burdens the religious exercise of parents by failing to provide mandatory notice and opt-out policies when school materials include Lesbian, Gay, Bisexual, or Transgender (LGBTQ+) topics. Instead of addressing the plurality of views around sexual orientation and gender, the Court indirectly, but unsubtly, installs a traditional values framework that imposes norms of heterosexuality, religious fundamentalism and parental micromanagement of curriculum. This simultaneously threatens the expression, learning, and community built in schools for everyone.

The stories of Mahmoud v. Taylor

Decided on June 27, 2025, Mahmoud v. Taylor represents a struggle between religious parents and secular public education over curriculum in Montgomery County Public Schools (MCPS) in Maryland. Maryland incorporated several suggested texts for instructors that would include LGBTQ+ characters to better reflect the diverse community of students and parents within the district. Several parents objected on religious grounds, requesting the school provide notice and offer an opt-out option when such materials are used in the classroom. At first, MCPS was willing to provide the option to parents but found the measures administratively unfeasible and potentially stigmatizing to students, concluding that no notice or opt-out was required because parents had access to book lists prior to every school year.

The different justices’ retellings of the case reveal their radically different framings of the facts. In the majority opinion of the Court, Justice Samuel Alito describes the origins of the conflict as rooting “in the years leading up to 2022”, when the MCPS “apparently ‘determined that the books used in its existing English and Language Arts curriculum were not representative of many students and families in Montgomery County’” because they did not include LGBTQ characters. According to Alito, this prompted the school district to include five storybooks for children between 5 and 11 years old. The pointed use of “apparently” and the lack of context make the MCPS decision appear abrupt and arbitrary rather than a good-faith effort by the school district to provide a more robust curriculum.

Justice Sotomayor’s dissent, in turn, reveals that the Court’s framing obfuscates a long effort by MCPS in reconciling the fact that “certain perspectives…were absent from its English language curriculum,” and only the latest in a broad effort to promote a “fully inclusive environment for all students’ by using instructional materials that reflect [the] diversity of the global community, including persons with disabilities, persons from diverse racial, ethnic, and cultural backgrounds, as well as persons of diverse gender identity, gender expression, or sexual orientation.” Justice Sotomayor’s telling of the facts focuses on the MCPS Board, subject matter experts, and teachers building a diverse and inclusive curriculum. Justice Alito’s framing in turn assumes the position of the plaintiffs, a religiously diverse coalition of parents whose sincerely held religious beliefs’ most apparent common thread is anti-LGBTQ bias.

Though Justice Alito is rhetorically deeply concerned with impressionable “young children, like those of [the plaintiff parents],” he spends little time talking about the rights, experiences, or issues faced by children in the classroom. Instead, he accuses the dissent of trying to “divert attention from…children subject to the instruction” by emphasizing the texts, characters, and importance of the curriculum. According to Justice Alito, the dissent takes on a “deliberately blinkered view” and is “air-brushing the record” by arguing that the inclusion of books with LGBTQ characters is “just about exposure and kindness.” Justice Alito’s framing of the issues for the majority views the books as “impos[ing] upon children a set of values and beliefs that are ‘hostile’ to their parents’ religious beliefs.” In this light, the mere inclusion and existence of these five books with LGBTQ characters and themes and instructional guidance for teachers presents an existential threat to religion. These books only make up a small percentage of the curriculum – with guidance for classroom discussion that affirms that Lesbian, Gay, Bisexual, Transgender, and other people exist and have rights to exist.

The hyperbolic disaster-framing by Justice Alito, therefore, concludes that because “the storybooks unmistakably convey a particular viewpoint about same-sex marriage and gender” and instructional materials “specifically encouraged teachers to reinforce this viewpoint” and discuss disagreements with students, the policy of inclusion, therefore, burdens the parents’ right to the free exercise of religion and is subject to strict scrutiny, which means that a government must demonstrate that its policy advances compelling government interests and is narrowly tailored to achieve those ends. The failure to permit an opt-out when including these LGBTQ storybooks thus unconstitutionally burdens the parents’ rights of control over their children. The Court disclaims that the Board’s proposed curriculum has any educational value. It simply states that it places an unconstitutional burden on the parent’s religious exercise if it is imposed without the chance for opt-outs. In doing so, it sidesteps any good-faith balancing of interests. Worse: It fails to recognize that including and discussing books from different perspectives in a school curriculum has value in an educational environment.

Faith, parents, and the first amendment

The Court’s broad reading of the parental rights to control the upbringing of their children paradoxically narrows the understanding of the First Amendment to be strictly a relationship between parents and the government. Fundamentally, the First Amendment to the United States Constitution is a restriction on the power of the state. It proclaims that Congress shall make no law “respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of people to peaceably assemble, and to petition the Government for a redress of grievances.” Later applied to State governments and municipalities, the amendment’s broad language reflects the importance the authors placed on resistance to state suppression of religious, expressive, and associational freedoms.

Theoretically, this freedom to believe, express, and associate should also apply broadly to a variety of perspectives. No single religion or type of speech is singled out, and the only subject of restriction is the state. That is, First Amendment rights should impose restrictions on the state, not compulsion for individuals to act, talk, believe, or associate in specific ways. But despite its expansive declaration of freedom that would prohibit governmental interference with expression or religion, the First Amendment has often faced limiting principles to facilitate the practical governance of a diverse, pluralistic society.

In Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Court recognized that “neutral laws of general applicability” could be constitutionally imposed on religious conduct and beliefs. The decision prohibited members of the Native American Church from receiving unemployment benefits. The plaintiffs were Indigenous persons who practiced their faith by taking peyote as part of a traditional ceremony. Justice Scalia claimed that the policy in question, prohibiting persons taking drugs from receiving unemployment benefits, did not unconstitutionally burden the plaintiffs’ religious practice. The reason was that this practice was “unconnected” to other valid constitutional rights and to “any communicative activity, or parental right.” Neutral laws of general applicability are therefore presumed valid unless they compel expression or interfere with other constitutional rights, in which case they are subjected to closer scrutiny.

Even when neutrally worded and generally applicable, state laws that compel expression and conduct can be unconstitutional. In West Virginia State Board of Education v. Barnette (1943), for example, the Court struck down a state law requiring compulsory flag salutes and recitation of the Pledge of Allegiance – practices that violated the beliefs of a Jehovah’s Witness student whose faith prohibits pledging allegiance to symbols like the flag. State laws that compel school attendance, on the other hand, are generally constitutional. Exceptions to this are state laws that restrict parents’ rights to choose private religious schools over public schools (Pierce v. Society of Sisters, 1925) and laws compelling school attendance that directly contradict religious beliefs (Wisconsin v. Yoder, 1971).

Critically, none of these cases, which articulate the free exercise of religion and parental rights, give parents total control over their children. Both Barnette and Pierce emphasize the importance of public education in preparing children to participate in society and sustain democratic governance. The answer in these cases was not to isolate children but to ensure the curriculum was inclusive of their religious practices. In Barnette, for example, the Court did not bar schools from including the pledge in their curriculum – it simply held that students could not be compelled to recite it.

In Justice Alito’s account in Mahmoud, students are exposed to a curriculum and instructions acknowledging the existence and rights of LGBTQ individuals – an exposure he suggests amounts to a violation of religious tenets. Yet even on his own terms, the burden on parents lies in the mere exposure to viewpoints that may conflict with their beliefs, not in any form of compelled activity. No assignment requires students to affirm a particular viewpoint, and the schools do not evaluate students based on what they say, think, or believe. The stories are readily available and read to the class, accompanied by instructions for teachers on how to engage with students in a way that validates both the story and the student.

Viewpoint discrimination

The Court has often found that the answer to disfavored speech, or expression that might be contrary to the views of others, is still protected speech. As Justice Alito explained in Matal v. Tam: “giving offense is a viewpoint.” Freedom of speech and free exercise of religion under the constitution, therefore, must include even those ideas that some might find offensive, with limited exceptions for speech that imminently incites lawless activity (Brandenburg v. Ohio, 1969) or obscenity (though the Court struggles to find a solid definition of the concept). The requirement of neutral laws of general applicability guards against so-called content- or viewpoint-based regulations of speech.

Mahmoud v. Taylor launders viewpoint discrimination through parental rights, allowing the regulation of classroom content through parental opt-outs while completely ignoring the students as learners, participants, or even people with rights. In Tinker v. Des Moines Independent Community School District (1969), the Court built upon cases like Barnette and Pierce, highlighting the importance of children’s speech within schools and validating that students hold First Amendment rights in schools. It found the suspension of young persons for wearing black armbands to protest the Vietnam War unconstitutional. Justice Abe Fortas explained for the majority that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.”

Justice Alito in Mahmoud extends this to parents. As he notes, the parent’s “right to free exercise, like other First Amendment rights, is not ‘shed . . . at the schoolhouse gate.’” This paraphrase of Tinker excludes the fact that students and teachers possess the same rights of free exercise, expression, and association in schools as well in not-so-subtle ways. A constitutionally mandated parental opt-out that the Court provides in Mahmoud defies the reasoning of West Virginia v. Barnette, which Justice Alito relies on as the foundation of his analysis of parental rights. In Barnette, Justice Robert Jackson explained, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Yet Justice Alito’s decision in Mahmoud allows parents to compel teachers and school officials to ensure their prescribed orthodoxy, meaning students no longer may discuss, express, or associate with LGBTQ storybooks as part of the official curriculum.

For those who come after

The Court’s opinion in Mahmoud v. Taylor sacrifices student’s First Amendment rights in the name of parental control. This enables parents to compel the speech and beliefs of students rather than let students develop their own thoughts, views, and beliefs – free to conform or disagree with the beliefs of their parents and classmates. This type of compelled speech would otherwise be prohibited. Mahmoud allows parents to compel the state to engage in viewpoint discrimination – something neither the parents nor the state could achieve alone, whether as a matter of constitutional law or practical enforcement.

Mahmoud decides on a vision of the future that is very much rooted in the past, severely restricting students from engaging with views that they may or may not share. Elsewhere, I have discussed how the history and traditional uses of originalism by the current Supreme Court bind us to narrow historical reasoning rather than an expansive historical understanding of the future – proposing Constitutional Futurism as a remedy to the originalism that has overturned reproductive rights, gun control, and now even children’s right to inclusive education and expression in Mahmoud v. Taylor. Justice Alito’s majority opinion endorses robust parental control over students, teachers and schools, when those parents already have curriculum oversight through ordinary democratic processes. The Court fails to recognize students – and children generally – as persons with rights, thoughts, and opinions that also deserve consideration. Rather than relying on tradition and compulsion, instruction can provide students with a way of questioning that can interrogate or even affirm their beliefs. This failure to recognize the personhood of children misses the expansive potential of future generations, all in the name of history and tradition.

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ICC Pre-Trial Chamber II issues arrest warrants on gender grounds against girls, women and other persons non-conforming with the Taliban’s policy on gender, gender identity or expression

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ICC Pre-Trial Chamber II issues arrest warrants on gender grounds against girls, women and other persons non-conforming with the Taliban’s policy on gender, gender identity or expression

Today, 8 July 2025, Pre-Trial Chamber II of the International Criminal Court (“ICC” or “the Court”) has issued, in the context of the Situation of Afghanistan, warrants of arrest for Mr Haibatullah Akhundzada, Supreme Leader of the Taliban, and Mr Abdul Hakim Haqqani, Chief Justice of the Taliban, who have exercised de facto authority in Afghanistan at least from 15 August 2021.

The Chamber has found that there are reasonable grounds to believe that Mr Haibatullah Akhundzada and Mr Abdul Hakim Haqqani have committed by ordering, inducing or soliciting the crime against humanity of persecution, under article 7(1)(h) of the Rome Statute, on gender grounds against girls, women and other persons non-conforming with the Taliban’s policy on gender, gender identity or expression; and on political grounds against persons perceived as “allies of girls and women”. These crimes are believed to have been committed on the territory of Afghanistan since the Taliban seized power on 15 August 2021, and have continued until at least 20 January 2025.

Pre-Trial Chamber II considered that the Taliban have implemented a governmental policy that resulted in severe violations of fundamental rights and freedoms of the civilian population of Afghanistan, in connection with conducts of murder, imprisonment, torture, rape and enforced disappearance. While the Taliban have imposed certain rules and prohibitions on the population as a whole, they have specifically targeted girls and women by reason of their gender, depriving them of fundamental rights and freedoms. Specifically, the Taliban severely deprived, through decrees and edicts, girls and women of the rights to education, privacy and family life and the freedoms of movement, expression, thought, conscience and religion. In addition, other persons were targeted because certain expressions of sexuality and/or gender identity were regarded as inconsistent with the Taliban’s policy on gender.

In assessing the evidence before it, the Chamber has taken into account the object and purpose of Article 7(1)(h) of the Rome Statute. This provision reflects the Statute’s broader aim to protect civilian populations from serious and systemic violations of fundamental rights, particularly those targeting vulnerable groups. In this context, the Chamber considered that the protection of victims of such crimes – especially women and girls who are often disproportionately affected by gender-based persecution – is central to the provision’s purpose. The Chamber found that gender persecution encompasses not only direct acts of violence, but also systemic and institutionalised forms of harm, including the imposition of discriminatory societal norms.

Furthermore, the Chamber found that individuals perceived as opposing these policies, even passively or through omission, were also targeted by the Taliban. This included those described as “allies of girls and women”, who were viewed as political opponents.

The Chamber has decided that the warrants will remain under seal at this stage, in order to protect victims and witnesses and safeguard the proceedings. Nevertheless, the Chamber considered that the conduct addressed is ongoing and that public awareness of the warrants may contribute to the prevention of the further commission of these crimes. Accordingly, the Chamber found that it is in the interests of justice to publicly disclose the existence of these warrants.

For further information, please contact Fadi El Abdallah, Spokesperson and Head of Public Affairs Unit, International Criminal Court, by telephone at: +31 (0)70 515-9152 or +31 (0)6 46448938 or by e-mail at: fadi.el-abdallah@icc-cpi.int

You can also follow the Court’s activities on Twitter/X, Facebook, YouTube, Instagram and Flickr

More: https://www.icc-cpi.int/news/situation-afghanistan-icc-pre-trial-chamber-ii-issues-arrest-warrants-haibatullah-akhundzada

The Brief – How Germany went from Pride to shaming diversity (Euractiv | THE BRIEF )

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Russia court announces ‘LGTBQA+ propaganda’ case against bookstore

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Russia court announces ‘LGTBQA+ propaganda’ case against bookstore

A Saint Petersburg court announced a case Tuesday against the bookstore “Подписные издания” (Subscription Publications) on charges of “LGBTQA+ propaganda.” No information is available yet regarding the reasons for the charges.

On its website, the bookstore shares that it has been open since 1926, with photos that capture the involvement of the store with the people of the cultural capital of Russia. Besides selling books, the bookstore has two cafes and a stationery line, hosts events, manages a children’s literature club, produces lists of children’s books and a literary journal, and publishes novels.

The bookstore was already fined 800,000 rubles (approximately $10,000) in May under the “LGBTQA+ propaganda” charges for selling books authored by Susan Sontag, known to defend women’s rights, journalists Valery Panyushkin and Sergey Parkhomenko, who are identified as “foreign agents,” and more. The court also demanded the removal of the aforementioned literature.

The charge of “LGBTQA+ propaganda” against the bookstore is the latest issue in the journal of human rights violations under Putin’s regime. After labeling the LGBTQA+ movement as “extremist” in 2023, the government dedicated a huge amount of resources to punishing anything that resembled it. Companies like Apple have been fined several times for failing to remove undesired content. Bookstores and publishers have been targets of searches, detention, and fines. LGBTQA+ activists have been fined for social media promotions, with at least one sentence being issued for “LGBTQA+ propaganda.” Fines are also given out for messages in Telegram chats, with some people even being detained for posts in Russian social media VKontakte.

On Wednesday, a woman in illegally annexed Crimea was fined 100,000 rubles (approximately $1300) under “LGBTQA+ propaganda” charges for a meme showing men in wedding dresses. The meme depicted men who say “let’s split the bill,” “I waited for you to make a first move,” “why should I be the one to invite [a girl] on a first day?,” and “prove to and show me that you need me” as men in wedding dresses, establishing a connection between the phrases and self emasculation.

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Hong Kong government proposes to legally recognize same-sex couples registered abroad

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Hong Kong government proposes to legally recognize same-sex couples registered abroad

On Wednesday, the Hong Kong government released an official document that proposes to establish a registration system for same-sex couples who were married or whose marriages are registered overseas.

This document, released by the Constitutional and Mainland Affairs Bureau, mandates that both partners must be of the same sex and at least 18 years old. Further, one of them must be a Hong Kong resident. Such a framework, if implemented, would confer certain important rights upon same-sex couples. These include rights related to the health of their partner, such as hospital visits, access to medical information and organ donations, as well as the right to handle a partner’s post-death affairs, like applying for a death certificate, claiming the body and arranging funeral matters.

Commenting on this proposed framework, the Bureau stated, “It is essential to establish appropriate registration requirements under an alternative framework that aligns with practical realities and public expectations, while safeguarding registrants’ rights and preventing abuse.”

Importantly, this government proposal comes on the back of a crucial ruling given by the Hong Kong Court of Final Appeal in September 2023, in the case of Sham Tsz Kit v. Secretary for Justice. Herein, the Court held that Article 14 of the Hong Kong Bill of Rights obligates the government to create a legal framework to recognize the rights of same sex couples, with a timeline of two years. However, it stopped short of deciding that there is a constitutional right to same-sex marriage.

Since this ruling, human rights groups as well as the UN have called upon the government of Hong Kong to take legislative steps in furtherance of the court’s decision. The Court of Final Appeal itself has also gone ahead to affirm the rights of same-sex couples to public housing and inheritance.

Hong Kong remains one of the few places in Asia to have created a legal framework for same-sex couples, along with other countries like Thailand, Japan and South Korea. Countries in other parts of the world, such as Poland have also recently moved to give legal support to same-sex unions.

This proposal is the first of such steps taken pursuant to the Court’s ruling, and will be discussed in the legislative council of Hong Kong on Thursday.

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Legal proceeding initiated against Russia activist amid LGBTQA+ crackdown

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Legal proceeding initiated against Russia activist amid LGBTQA+ crackdown

The Investigative Committee of Yaroslavl Oblast initiated a criminal proceeding on Thursday against Russian LGBTQA+ activist Yaroslav Sirotkin on the charges of participation in an “extremist organization,” according to local media.

According to the investigation, Sirotkin posted 14 social media posts and videos that included “propaganda of non-traditional sexual relationships” between December 2023 and January 2024. The LGBTQA+ movement is identified as extremist and has been banned in Russia since 2023.

Sirotkin, who is considered to be a “foreign agent” by the government, left Russia in 2022. After arriving in Armenia, he opened a shelter for LGBTQ+ refugees from Russia, Ukraine and Belarus with another activist, Alexander Derrek. In 2024, Sirotkin was placed on a wanted list by Russian authorities.

Legal actions against Sirotkin are part of the larger anti-LGBTQA+ crackdown in Russia affecting both individuals and companies. In February, for instance, online platform Wattpad was fined 3.5 million rubles (approximately $44,000) for not deleting an LGBTQA+ novel. In May, an activist was also fined 2000 rubles (approximately $25) for a Pink Floyd emoji in her Telegram name.

In 2024, the fines for “propaganda of LGBTQA+ movement” totaled 25 million rubles (approximately $314,000): 71 citizens of Russia and other states and 20 judicial persons were fined, and at least four foreign nationals were deported. Recent LGBTQA+ activists affected are Nikolai Rodkin, against whom a similar proceeding of participating in an “extremist organization” was initiated, and Alexandra Kazantseva, who was placed on a wanted list in March.

In February, the first known sentence for LGBTQA+ involvement was issued when an imprisoned man was given a six-year extension on his sentence for “involving other prisoners in the LGBTQA+ movement.”

Some of the legal actions of the Russian government are countered by international bodies. In February, the European Court of Human Rights (ECHR) found that Russia violated Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which protects the right to expression, by blocking and fining LGBTQA+ activists. The court ordered financial compensation.

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EU official condemns Hungary’s restrictions on LGBTQ+ content

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EU official condemns Hungary’s restrictions on LGBTQ+ content

The advocate general of the Court of Justice of the European Union (CJEU) said Hungary infringed European law by restricting access to LGBTQ+ content in an advisory opinion published Thursday.

Tamara Ćapeta stated that Hungary has deviated from the EU’s values and recommended the CJEU find that the nation infringed Article 2 of the Treaty of the European Union (TEU):

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

In 2021, the Hungarian government introduced legislative amendments that prohibited and restricted LGBTQ+ content that “portrays or promotes gender identities that do not correspond to the sex assigned at birth, sex reassignment or homosexuality.” The European Commission — the main executive body of the European Union (EU) — responded by bringing an infringement action against the country and requested the CJEU to announce the violation. The Hungarian government titled the legislative action “Act LXXIX (79) of 2021: adopting stricter measures against persons convicted of paedophilia and amending certain laws for the protection of children.”

Hungary’s amendments restrict the freedom to provide and receive services, which are granted through the Treaty on the Functioning of the European Union (TFEU). Articles 49 through 55 establish the right of establishment; Articles 56 to 62 establish the right to services. The amendments also allegedly breach EU directives on electronic commerce, services, audiovisual media and data protection.

Hungary was additionally said to have infringed Articles 1, 7, 11 and 21 of the Charter of Fundamental Rights of the European Union (CFR). Allegations include infringement on the freedom of expression, freedom of information, the right to privacy and family life, the right to human dignity and the prohibition of discrimination on the basis of sex and sexual orientation. Ćapeta said that Hungary’s laws “are based on a value judgment that homosexual and non-cisgender life is not of equal value or status as heterosexual and cisgender life.”

Article 253 of the TFEU mandates that advocate generals “assist” the CJEU, directing them to act with “impartiality and independence.” However, their opinions are not legally binding.

In May, EU member states signed and published a declaration condemning Hungary’s crack down on the rights of LGBTQ+ people. On June 1, Budapest police justified banning a march through the strict laws, claiming the assembly resembled “Budapest Pride.”

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