The Hungarian LGBT Alliance, umbrella organization of gay, lesbian, bisexual and transgender (LGBT+) non-governmental organizations in Hungary, has reviewed Bill T/9934. on the modification of certain administrative regulations. Article 33 of the Bill would modify Act I/2010 by changing the term ‘gender’ into ‘birth sex’ in birth certificates and would exclude the possibility of changing this information. With this, the law would make it impossible to legally recognize the gender of transgender and intersex persons.
These regulations gravely curtail the fundamental human rights of transgender and intersex persons, contradict contemporary scientific opinion, break the harmony of Hungarian legislation and expose transgender and intersex people to various forms of discrimination and exclusion. Therefore, we recommend the deletion of Article 33. from the Bill.
THE PRESENT LEGAL SITUATION
There is no law regulating the recognition of trans* people’s gender; nevertheless, since the early 2000s trans* people were able to change their name and gender in their documents by submitting a petition to the competent registration authority. The law prescribed a “health practitioner’s expert opinion” as a prerequisite for gender change, but it did not specify whether the registrar or the competent registration authority should make the decision to accept or reject the petition. Due to this imprecise legislation, in May 2018 the competent authorities suspended the practice of granting legal gender transitions. Several court cases have started in this issue, with various results. Nevertheless, the claim that the state secretary of the Prime Minister’s Office made during the debate, that “in Hungary there is legislative insecurity about whether one can administratively change one’s gender in the registration documents” is false. Until the submission of this bill no state authority or court had ever questioned the right of transgender people to get their gender legally recognized and to change their name accordingly.
FUNDAMENTAL RIGHTS ISSUES
The Constitution Court has passed several judgments which directly or indirectly dealt with the recognition of trans* people’s gender. In a name-change case in 2001 it ruled that “in the case of transsexuals changing their gender, the right to change their name is a fundamental right” [58/2001], adding that, in line with the practice of the European Court of Human Rights, such transsexuals may demand the change of their name in their birth certificate, and new certificates must be issued for them due to the change of their name and gender. Again referring to Strasbourg case law, in 2008 the Constitution Court declared that the right to marriage in the case of transgender people means they can marry someone of the opposite gender in relation to their present gender, not their sex assigned at birth.
With regard to the legal recognition of the gender of a trans* asylum seeker, the Constitution Court passed the unanimous judgment that “every human being has the right to bear a name that expresses her or his identity. (…) A special case is when someone changes their name along with gender transitioning, the basis of which is their identity as a PERSON and the inviolability of human dignity. The Constitution Court rules that name change related to gender transitioning, as it is a determinant of the person’s identity, is an inviolable right.” They add that in fact, name change is also a duty in the case of gender transition, as the Hungarian language does not have gender neutral first names, and the name must always reflect the person’s gender.
INTERNATIONAL OBLIGATIONS
There is two decades of case law at the European Court of Human Rights saying that trans* people have the right to change their name and legal gender in all their documents. In the case Christine Goodwin vs the United Kingdom (28957/95, July 11th 2002) it declared that gender should not be determined solely on the basis of biological characteristics, and an end should be put to the practice whereby transgender people who have transitioned do not fully belong to either legal gender. The Court has reinforced this argument in several subsequent cases. In Garçon and Nicot vs France (79885/12, 52471/13, 52596/13, April 6th 2017) the Court stated that full gender reassignment should not be the condition for official gender recognition.
Based on case law from the ECHR, several European and international human rights recommendations call attention to the right to gender recognition. Recommendation CM/Rec(2010)5 of the European Council Committee of Ministers, signed also by Hungary, says in Article 21. that “ Member states should take appropriate measures to guarantee the full legal recognition of a person’s gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way.” Resolution 2048(2015)of the EU Parliamentary Assembly calls on Member States to „develop quick, transparent and accessible procedures, based on self-determination, for changing the name and registered sex of transgender people on birth certificates, identity cards, passports, educational certificates and other similar documents; make these procedures available for all people who seek to use them, irrespective of age, medical status, financial situation or police record.”
On the basis of these documents we can state that official gender recognition nowadays is an unquestionable human rights standard, what Member States can differ in is only the procedures of recognition. In case Article 33. of Bill T/9934. is accepted, it is likely that many stakeholders will turn to the European Court of Human Rights in Strasbourg, and the compensations imposed by this Court will pose a huge financial burden on the Hungarian state. Already 23 claimants have turned to the ECHR (Csikós and others vs. Hungary, 66078/17, 12918/19), and dozens of others have signaled a similar intention to the Legal Aid Service of Háttér Society.
It is no accident that in the four weeks since the Bill was proposed, several organs of the Council of Europe, the European Union and the United Nations have spoken up against passing this Bill, including the UN High Commissioner for Human Rights, 63 EMPs, the European Parliament as a whole and the Human Rights Commissioner of the Council of Europe.
HARMONY OF THE LEGAL SYSTEM
The Bill would only introduce the notion of “birth sex” in the law regulating registration procedures. However, the notion of “gender” appears in several laws and other regulations besides this law, whereas the notion of “birth sex” is alien to the Hungarian legal system. If the Bill is passed, birth certificates in the future will only contain the person’s “birth sex”, not “gender”, even if the two are not identical. Moreover, the Bill only regulates ongoing and future procedures, so for people born before May 2020 the birth certificate will refer to “gender”, whereas for those born in or after May 2020 to “birth sex”. The retrospective application of the law goes against Hungarian legislation, and would also ignore that hundreds of transgender people have changed their legal gender in the past two decades, whose birth certificates contain their present gender, so a new birth certificate calling it “birth sex” would be false. In case the legislator means to restore the original official gender and documents of these people, it would put a considerable burden on state and non-state institution as hundreds of certificates, passports, IDs, diplomas etc. would have to be changed. Also, such a measure would breach acquired rights, which would make these people start compensation lawsuits against the Hungarian state in national and international courts.
THE NOTION OF BIRTH SEX
The idea of “birth sex” contained in the Bill is unscientific and ignores the existence of intersex people. The Bill defines “birth sex” as “biological sex based on primary sex characteristics and chromosomal sex”. However, primary sex characteristics might contradict chromosomal sex: some individuals are born with XX chromosomes but male sex characteristics (De la Chapelle syndrome), others are born with XY chromosomes and have female sex characteristics (Swyer syndrome). Some people’s chromosomes cannot be classified according the binary categorization of sex (X: Turner syndrome, XXY: Klinefelter syndrome). Though the present system does not afford proper registration for these people, at least it does not pretend to base legal gender entirely on biological sex characteristics. The legislator may say that they only acknowledge two legal genders, male and female, but should not pretend that all people can be classified into these two categories based on their sex characteristics.
A further complication for intersex people is that the ban on changing “birth sex” as specified in Article 33(3) of the Bill applies to them as well, so if one’s intersex condition was revealed during puberty and their body and gender identity developed in a direction different from their sex assigned at birth, they would not be allowed to change their “birth sex”. Though infrequently, it also happens that the biological sex of a non-intersex person is misclassified at birth or registered wrong; based on Article 33(3) this person would have to live their life classified into a sex completely alien to them.
PUBLIC OPINION
Though a law fundamentally influencing the life of a numerical minority cannot be founded entirely on the opinion of the majority, it might be important to note that based on a representative survey in September 2019 an overwhelming majority (70%) of Hungarians do not agree with the proposed Bill, and would make it possible for transgender people to have their gender recognized under certain conditions. Only 13% said that under no circumstances should a transgender person be allowed to officially change their name and gender in their documents.
EXPECTED EFFECTS OF THE BILL
Besides offending the human dignity of trans* and intersex people, the proposed law would have a deep negative effect on their social integration, mental health and well-being. Trans* people already face a wide range of discrimination in the field of employment, health care, housing and access to goods and services. Accepting the Bill would worsen this situation, as in every case when a trans* person had to identify themselves (at a job interview, in a bank, when signing a contract or at a police check), the contradiction between their documents and appearance would make it obvious that they are trans* and thus expose them to discrimination. The lack of recognition and the experience of discrimination might drive many trans* people to despair, self-harming behaviors and suicide.
The State Secretary of the Prime Minister’s office said during the debate that “the Bill contains no restrictions [on gender reassignment procedures], so such interventions as well as assuming a trans* identity can be freely pursued”, but this is questionable. A trans* person cannot be considered free to assume their identity if, due to state regulations, they must expose their trans* status every time their documents are checked. The State Secretary argued that “authorities, health care institutions and penitential institutions should be aware of the person’s birth sex”. However, in most competences of the authorities, sex assigned at birth has no relevance, and when it does, it could be indicated on the birth certificate containing the person’s legal gender as a side note and thus easily reconstructed. Health care professionals might indeed need information about the person’s sex assigned at birth, as well as a number of other personal characteristics – still, the latter are not included in state registries but it is left for the patient to decide whether they want to share it with their doctor for the sake of their own treatment. The reference to penitential institutions is even less clear, unless it means that trans* people should be put into institutions/departments corresponding their birth sex. However, this would be extremely risky for the security of both the trans* person and the institution: imagine what would happen if a person who has been living as a woman in a female body for decades had to share her cell and shower together with a group of men.
The Hungarian Psychological Association emphasized the negative effect of the Bill on mental health, when in their declaration they said: “it is our professional position that by making it impossible for a person to change their legal gender, the state forces trans* and intersex people seeking gender reassignment to live in permanent discrimination. (…) As psychologists working with this group, we experience daily the effect of this hopelessness on our clients. All discrimination has serious negative consequences on the mental health and life of the person and their communities. This is even more true when it is the law that deprives them of rights indispensable for their well-being. With reference to this, as professionals responsible for the safety and health of our clients, we strongly oppose the proposed amendment.” A similar position was expressed by the European Professional Association for Transgender Health and the European Society for Sexual medicine as well, who write, in their letter to President János Áder: “we firmly believe that any medical, legal or and other barriers to gender recognition for transgender individuals may harm physical and mental health.”
We can thus conclude that this Bill would seriously deprive a group, albeit small, of their fundamental rights. The Bill is based on a dated definition of sex, enjoys no wide social support, increases the vulnerability of an already marginal group, and seriously breaches both the interpretation of the Fundamental Law by the Constitution Court and various human rights obligations Hungary has undertaken.
Based on this we demand that Article 33. of the Bill should be deleted.
