The European Commission has launched on Thursday two sanctioning files to Hungary and Poland for their homophobic laws. The EU executive understands that they violate the fundamental rights of LGTBIQ people. “Europe will never allow parts of our society to be stigmatized: whether it is because of the people they love, their age, their ethnicity, their political opinions or their religious beliefs,” European Commission President Ursula von der Leyen told the European Parliament a few days ago.
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Brussels defends that “equality and respect for human dignity and human rights are fundamental values of the EU, enshrined in Article 2 of the Treaty on European Union”, so it “will use all the instruments at its disposal to defend these values”.
In Hungary, the reported cases include the recently passed law prohibiting or limiting access to content promoting so-called “gender identity divergence, sex change or homosexuality” for persons under the age of 18; and a disclaimer on children’s books with LGTBIQ content.
In relation to Poland, the European Commission considers that the Polish authorities did not fully and adequately respond to its investigation into the nature and impact of the so-called “LGBT-free zones” adopted by several Polish regions and municipalities.
The two Member States now have two months to respond to the arguments put forward by the Commission. Otherwise, the European Commission may decide to send them a reasoned opinion and, in a subsequent step, refer them to the Court of Justice of the European Union.
Hungary: ban on LGTBIQ content
On 23 June 2021, Hungary published a law providing for a series of restrictive and discriminatory measures; in particular, it prohibits or limits access to content that propagates or portrays so-called “divergence from one’s gender identity at birth, gender reassignment or homosexuality” for persons under the age of 18.
“The protection of minors is a legitimate public interest that the EU shares and pursues,” Brussels says, “however, in this case Hungary has not explained why exposing children to LGTBIQ content as such would be detrimental to their well-being or would not be in line with the best interests of the child.”
The Commission has therefore decided to send Hungary a letter of formal notice because it considers that the law violates a number of EU rules.
Firstly, “the Audiovisual Media Services Directive has been breached as regards rules for audiovisual content and the free provision of cross-border audiovisual media services, as Hungary imposed unjustified restrictions that discriminate against people on the basis of their sexual orientation, and are also disproportionate”.
Furthermore, “some of the contested provisions infringe the e-commerce directive (namely the country of origin principle). The law prohibits the provision of services displaying content showing different sexual orientations for minors, even if these services originate in other Member States”.
In addition, Hungary “failed to justify the restriction of cross-border information society services”; “failed to notify the Commission in advance of some of the contested provisions despite the obligation to do so laid down in the Single Market Transparency Directive”; “has violated the Treaty principles of freedom to provide services and free movement of goods by failing to demonstrate that the restrictions are duly justified, non-discriminatory, and proportionate”; and “the established right to data protection is being violated by some of the contested provisions”.
Finally, the European Commission believes that the Hungarian provisions “also violate human dignity, freedom of expression and information, the right to respect for private life and the right to non-discrimination”.
Disclaimer’ in children’s books with LGTBIQ content
On January 19, 2021, the Hungarian Consumer Protection Authority forced the publisher of a children’s book featuring LGTBIQ people to include a disclaimer that the book describes forms of “behavior that deviate from traditional gender roles.”
“This amounts to restricting the right to freedom of expression and the right to non-discrimination enshrined in the EU Charter of Fundamental Rights and violates the directive on unfair commercial practices,” according to the European Commission, which has decided to send Hungary a letter of formal notice because it considers that, by imposing an obligation to provide information on divergence from “traditional gender roles”‘, Hungary “restricts the freedom of expression of authors and publishers of books, and discriminates on grounds of sexual orientation in an unjustified manner.”
Specifically, “Hungary has not justified the restriction of these fundamental rights, nor has it provided any justification as to why the exposure of children to LGTBIQ content would be detrimental to their well-being or would not be in line with the best interests of the child.”
Poland and its “LGTB ideology-free zones”.
As of 2019, several Polish municipalities and regions adopted resolutions on the creation of so-called “LGTB ideology-free zones”.
“The European Commission is concerned that these declarations may violate EU law on non-discrimination on grounds of sexual orientation,” the EU executive says: “Therefore, a detailed analysis of the compatibility of the resolutions with EU law is necessary.”
To complete this assessment, the European Commission “needs adequate and complete information from the Polish authorities. Despite a clear call from the Commission in February, the Polish authorities have so far failed to provide the requested information, manifestly failing to respond to most of the Commission’s requests.
“Poland is therefore”, Brussels concludes, “hampering the European Commission’s ability to exercise the powers conferred on it by the Treaties and in breach of the principle of sincere cooperation which requires Member States to provide genuine cooperation to the Union’s institutions. The Commission has therefore decided to send a letter of formal notice to Poland for its lack of cooperation”.
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