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The Hungarian Propaganda Law and the Last Nail in the Coffin of LGBTQIA+ Rights
As the cheer of Pride Month resonates across the world, the Hungarian Parliament sounded the death knell for the rights of the LGBTQIA+ community with its recently passed legislation. In effect, the legislation bans the dissemination of pornographic material and any content portraying or promoting sex-reassignment or homosexuality to any individual under 18 years of age. Such dissemination is prohibited through the medium of school education, commercial advertisements and media like television during the prime time hours. Through this piece, the authors shall analyse this legislation from a socio-legal perspective.
Analysing the law through Kristina Boréus’ framework of ‘Discursive Discrimination’
The discrimination that we understand refers to the unfair treatment of the members of a group on account of their membership of the said group. However, as explained by Kristina Boréus, this discrimination can also be carried out through the powerful medium of discourse, and is known as ‘Discursive Discrimination.’ One of the main forms of discursive discrimination is ‘Discursive Exclusion,’ which is of two kinds: the exclusion of voices, and invisibilisation. The former appears when members of a group are excluded from participating in a discourse or debate that is of importance to them. As for invisibilisation, it is not the voiced opinions of the members of a certain group that are excluded, but the references to and images of the group members. The recent legislation of the Hungarian Parliament prevents issues related to the LGBTQIA+ community from being portrayed on prime time media. This has the effect of completely excluding the voices of the community from the mainstream discourse, thus depriving them of the opportunity to be heard. Similarly, while the law directly affects the rights of the members of the LGBTQIA+ community, their voices were completely absent from the law-making process. Moreover, the legislation attempts to invisibilise the community by banning the mere portrayal of homosexuality to minors. According to Boréus, the underrepresentation of a community (or in this case, the absence of representation) further undermines its position in the society. This can be better understood through Pierre Bourdieu’s lens of ‘Symbolic Annihilation.’ This term refers to the delegitimisation of a certain identity through its underrepresentation or negative portrayal in the media. Naturally, the society is susceptible to the media it consumes, and often interprets the depiction of minority groups in the media as a model of behaviour that it must follow with respect to its treatment of the said groups. The deliberate invisibilisation of the LGBTQIA+ community in the media denies its existence in the society. As a result, the familiarity and behavioural codes are not well established, thus causing the interaction to be characterised by the status quo inequality.
The recent legislation of the Hungarian Parliament prevents issues related to the LGBTQIA+ community from being portrayed on prime time media. This has the effect of completely excluding the voices of the community from the mainstream discourse, thus depriving them of the opportunity to be heard.
Another way in which the members of a group can be discursively discriminated against is through their ‘negative other presentation.’ This refers to the deliberate attempts to present the members of a certain group as inferior, by way of negatively evaluative descriptions, derogative labelling, etc. In a country where 53% of the population sees homosexuality as ‘morally wrong,’ the depiction of content portraying homosexuality as having the potential to morally ‘corrupt’ children further stigmatises the members of the community. Moreover, it is imperative to keep in mind that this provision was only recently added to a draft bill which was originally meant for the introduction of stricter punishments against pedophilia. The perverse attempt of the Hungarian Government to problematise homosexuality by trying to compare it with pedophilia is especially evident in light of the statement made by the Speaker of the Lower House of the Hungarian Parliament in the year 2019: “There is no difference morally in the behaviour of a pedophile and homosexuals who want to adopt. In both cases, the child is an object, an item of luxury, the tool used for self-realisation and fulfilment.” In the case of Bączkowski and Others v. Poland, the European Court of Human Rights concluded that the strong personal opinions expressed by the Mayor publicly could have a direct bearing on the anti-LGBTQIA+ decisions taken by the authorities. Thus, behind the facade of ‘child protection,’ there lies a clear endeavour to further stigmatise this already marginalised community.
[I]t is imperative to keep in mind that this provision was only recently added to a draft bill which was originally meant for the introduction of stricter punishments against pedophilia.
Examining the legality of the law
Apart from the psychosocial repercussions, the new legislation is in blatant violation of European Union [EU] law. Article 21 of the legally binding EU Charter of Fundamental Rights clearly enshrines the principle of non-discrimination on the grounds of sexual orientation. Article 1 of Protocol No. 12 to the European Convention on Human Rights [ECHR] also embodies a right against discrimination. Under Article 14 of the ECHR, individuals shall enjoy rights under the Convention without any discrimination on the basis of the listed grounds, which include sexual orientation as per the case ofSalgueiro da Silva Mouta v. Portugal. By targeting homosexuality through this law, Hungary has overlooked its duty as a member state. The main justification provided behind doing so is to ensure the protection of the moral and mental development of children. However, the European Court of Human Rights explicitly laid down in the case of Alekseyev v. Russiathat there is no scientific evidence which could point towards the conclusion that the mere mention of homosexuality would adversely impact children.
An important component of the right under Article 11 of the Charter of Fundamental Rights is the freedom to hold opinions and receive information without interference by a public authority. The new law poses a serious threat to this right of the LGBTQIA+ youth. Without adequate information about diverse sexual orientations, the heteronormative script shall engrave itself in the minds of these youth, who would hence feel it ‘right’ to remain closeted. In this context, we must locate the right to freedom of expression under Article 10 of the ECHR. Evidence shows that fair and open public debate about homosexuality can promote social cohesion by ensuring that all voices are heard, regardless of their sexual orientation. The duty of member states to promote such pluralism was recognised as a cog in the wheel of democracy by the European Court of Human Rights in its Bączkowski judgement. Such pluralism must also be promoted through the media as per the EU Audiovisual Media Services Directive. The Special Rapporteur on the promotion and protection of freedom of opinion and expression stated in one of his reports that the right to freedom of opinion and expression of LGBTQIA+ persons under Article 19 of the Universal Declaration of Human Rights [UDHR], of which Hungary is a member state, is hindered when issues relating to homosexuality are never broadcast on the media on prime time. In Toonen v. Australia, the Human Rights Committee [HRC] stated that in a democratic and pluralistic society, the notion of freedom of speech and expression includes within its purview even those minority views which may shock or offend the majority. While the decisions of the HRC are not binding on state parties, they must be considered in pursuance of good faith. Indeed, it would be inconsistent with the underlying values of the ECHR if the exercise of rights by a minority group were only to be allowed if they were accepted by the majority.
In a desperate attempt to appease the orthodox voters in the run-up to the 2022 election, the law fails the Hungarian LGBTQIA+ community on all counts. Only when all Hungarians are treated as equal, no matter who they are or whom they love, will the country be truly free.