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Hungary Court Closes Door on Transgender Legal Recognition

Activists Will Appeal to European Court of Human Rights

An activist waves the transgender flag during a protest at the Presidential Palace in Budapest, Hungary, June 16, 2021. © 2021 Bernadette Szabo/AP Photo

In the latest blow to trans people in Hungary, the country’s Constitutional Court issued a ruling that will continue to block new applications from transgender people for legal gender recognition. The judgment effectively creates two categories of trans people in Hungary: those who applied early enough to pursue gender recognition and those who did not.

In 2020, Hungary’s parliament passed a law banning transgender or intersex people from legally changing their gender, putting them at risk of harassment, discrimination, and even violence when they need to use identity documents. In 2021, the Constitutional Court ruled the ban on legal gender recognition does not apply retroactively, so trans people who started their legal process before May 29, 2020, were able to continue doing so. But yesterday the Constitutional Court rejected a petitioner’s plea that they be recognized based on an application submitted in 2021.

Hungarian jurisprudence already contains strong support for transgender and intersex people’s rights to legal recognition. A 2018 Constitutional Court ruling found that Hungary’s Fundamental Law requires the state to allow trans people to self-identify. “The right to bear a name” consistent with one’s gender, the court found, “is a fundamental right deductible from the right to human dignity.”

“The Hungarian government’s practice sanctioned by the Constitutional Court is one of total disenfranchisement,” said Eszter Polgári, legal program director of Háttér Society, a Hungarian (Lesbian, gay, bisexual and transgender) LGBT rights group.

Háttér Society plans to take the case to the European Court of Human Rights. There is an emerging norm across Europe to eliminate barriers to legal gender recognition, not create them as Hungary has. In a 2002 case, the court held that refusal to change identification documents in the UK could amount to discrimination and violate the right to privacy. In another case in 2003, that court found Germany had failed to respect “the applicant’s freedom to define herself as a female person, one of the most basic essentials of self-determination.”

The Constitutional Court invoked concerns about criminality and health care in rejecting the petition, claiming someone’s sex assigned at birth is critical to know in health care and legal settings. Such claims, as a reason to reject legal gender recognition, do not stand up to scrutiny. The Hungarian government’s insistence on undermining the dignity of trans people is contrary to the right to private life and does not hold up against Hungary’s international and European human rights obligations.

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