The act on whistleblower protection does not outlaw rainbow families
Although the recently passed legislation will further strengthen anti-LGBTQI public sentiment, the provisions of the new law do not create a basis for legal persecution of rainbow families.
On 11 April 2023, Parliament passed a law transposing the EU Whistleblower Directive - just not in the way the EU would have expected. The new law allows anyone to file a whistleblower report if they feel that someone is challenging the constitutionally recognised role of marriage and the family, or the right of children to adequate protection for their development and to an identity appropriate to their birth sex. Although the text of the law does not explicitly mention rainbow families, it is difficult to assume that this provision is not one of the anti-LGBTQI provisions that are recurring in the agenda of the government. Its impact is already being felt: even before the law was passed, speculation had begun as to whether it would allow 'denouncing' rainbow families, what sanctions could be expected, and whether same-sex couples would now be once again confined to the four walls, especially if they are raising children. These questions are answered in this piece.
The provision, which may affect same-sex couples and rainbow families, does not provide grounds for any report under the new law. Hungarian law does not prohibit, on the contrary, it recognizes same-sex partnerships, and there is no legal obstacle to same-sex couples having children. The Civil Code acknowledges the non-blood parent of a same-sex couple raising a child as a step-parent or foster parent, and adoption rules do not exclude LGBTQI people in registered partnerships from adopting a child as individual adopters - this is also recognised by the National Child Protection Service's adoption methodology. While the recently tightened adoption rules make it more difficult for people to adopt outside marriage, it is still possible, and this of course does not affect families previously formed through adoption. A recent publication by Háttér Society takes stock of the legal ways in which same-sex couples can have a child in Hungary today. The existence of same-sex partnerships and rainbow families cannot be interpreted as challenging the constitutional notions of family and marriage, and therefore there is no legal basis for any whistleblower report. Otherwise, heterosexual couples living together in a civil partnership and children born out of wedlock would also be notifiable, as these relationships also fall outside the constitutional protection of marriage.
Even if such unsubstantiated whistleblower reports are made, there are no sanctions that can be applied in such cases. Since there is no offense, there is no remedy to end it, and no other sanctions that can be invoked. In contrast to the rule concerning LGBTQI people, other elements of the provision in question could even be subject to criminal sanctions: denying or relativising the crimes of the National Socialist or Communist dictatorship, for example, is a criminal offense. This is not the case for same-sex couples and their children, so it is conceptually impossible for anyone in the community to be disadvantaged simply because of their relationship or family status.
The primary purpose of the law is to maintain a climate of hostility towards LGBTQI people and to reinforce the self-censorship that has already developed as a result of the so-called ‘child protection’ law. The state is pitting its own citizens against each other, promoting the treachery and informant culture that was prevalent under Communism, rather than actively working for social cohesion and acceptance of each other. The law is only effective when we allow ourselves to be intimidated, when we withdraw and live in fear. Legislative will is best fought by people who stand up for their rights with dignity and courage.
If anyone is being disadvantaged or needs legal help, the Háttér Society's Legal Aid Service (email@example.com) will continue to do all it can to protect the rights of members of the LGBTQI community.