More than 60 transgender Hungarians have submitted applications to the European Court of Human Rights | Háttér Society

More than 60 transgender Hungarians have submitted applications to the European Court of Human Rights

More than 60 transgender Hungarians have submitted applications to the European Court of Human Rights

Following the shameful decision of the Hungarian Constitutional Court in February 2023, the Legal Aid Service of Háttér Society decided to turn to the European Court of Human Rights (ECtHR) to get legal gender recognition restored in Hungary. Nearly a hundred people responded to our call in February 2023, and as part of our strategic litigation, we have so far submitted over 70 applications to the ECtHR. 

Transgender people in Hungary used to have access to one of the most progressive practices on legal gender recognition not requiring medical interventions for nearly two decades. However, in Spring 2020, in the midst of the COVID epidemic, the Parliament, hidden in an omnibus law, banned legal gender recognition for transgender and intersex people without any professional or social debate. 

As a result, after May 29, 2020 none of the clients represented by our association have been able to request the legal recognition of their gender or to initiate a related change of their name, even though they all have a medical opinion confirming their transgender status. Because of the contradiction between their social reality and their official documents, our clients are forced on a daily basis to share information about the most intimate aspect of their private lives, whether at work, during a police check or even when paying with a credit card. They are constantly forced to provide an explanation about their gender identity in situations that are degrading and violate their human dignity. 

The Hungarian legislation in force is in stark contrast to the regulatory principles laid down in ECtHR case-law. As early as 2002, the ECtHR ruled that a Member State's legislation that determines gender “by purely biological criteria" was in breach of the Convention, and the current Hungarian rule that considers the sex at birth to be unchangeable does exactly that. The right to respect for private life enshrined in Article 8 of the European Convention on Human Rights encompasses an individual's physical and social identity, including their gender identity. The Convention is about protecting human dignity and human freedom, and as part of the right to private life, it guarantees the right of everyone to define the details of their identity. And the protection does not depend on whether someone is undergoing or has undergone gender affirming treatment.

Article 8 of the Convention not only shields against arbitrary interference with the exercise of the right, but in many cases imposes a positive obligation on the state to ensure the effective exercise of the right. In the context of gender recognition, the Court has defined the positive obligation of the State as the need to provide "quick, transparent and accessible procedures" for transgender people to change their gender marker (and if necessary, their name). This was confirmed by the ECtHR in June this year in its ruling in the case of R.K. v. Hungary: although the applicant in that case had sought legal gender recognition at a time when it was available in principle but not in practice, the judgment also made important observations about the current legal environment. 

"It is important to make it clear to the ECtHR that the lack of legal gender recognition is a structural problem that systematically deprives trans people of their fundamental rights. The decision of the Constitutional Court rendered in February, 2023 was narrow-minded and ignored the fundamental rights dimension of the issue. The decision left no hope for any domestic remedy, and we still encourage all those affected by the ban to join our strategic case before the ECtHR," said Eszter Polgári, director of the Legal Program at Háttér Society.

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