Hungary’s anti-LGBTQ+ rules breach EU law, top court adviser says

Hungary is violating European Union law by cracking down on LGBTQ+ content children might be exposed to, a top adviser at the European Union's highest court said on Thursday.

The legal opinion comes ahead of a final ruling by the Court of Justice of the EU that could force Viktor Orbán's government to scrap one of its most controversial laws — a 2021 law restricting and banning the representation and “promotion” of homosexuality and gender transition across all media accessible to children.

Hungary "has significantly deviated from the model of a constitutional democracy," the court's Advocate General Tamara Ćapeta found, according to a press release. Budapest's rules "are based on a value judgment that homosexual and non-cisgender life is not of equal value or status as heterosexual and cisgender life," the press release added.

The opinion gives the European Commission clout in its clash with Budapest over fundamental rights, which most recently escalated after Orbán's government banned Pride events in mid-March and authorized police to use biometric cameras to identify organizers and attendees.

Advocate-general opinions are nonbinding. However, they do often signal where the court will land in its final ruling, which usually comes out within months following the opinion.

The European Commission opened an infringement procedure in July 2021 after Hungary adopted the law, which seeks to bar children from seeing LGBTQ+ content across television programs and advertisements, books, sex education classes and beyond. Same-sex couples and transgender people are banned from daytime TV and ads, while queer-themed books must be sealed and can’t be sold near schools and churches.

Budapest invoked the EU's audiovisual media rulebook and its provisions on protecting minors from harmful content as a legal basis to limit the visibility of LGBTQ+ communities on television.

"The Hungarian bill is a shame," Commission President Ursula von der Leyen said in 2021, vowing to use "all the powers of the Commission to ensure that the rights of all EU citizens are guaranteed, whoever you are and wherever you live.”

In December 2022, the EU executive took the case to court and got the backing of 15 member countries and the European Parliament.

The Hungarian provisions infringe a series of EU laws and interfere with fundamental rights, Ćapeta said Thursday, arguing the infringement procedure is "founded."

If the court confirmed that the 2021 provisions are unlawful, Hungary could face a hefty fine and be forced to roll them back.

In its latest move against LGBTQ+ rights, Hungary's parliament passed a law in March banning Pride events and authorized police to use biometric surveillance to identify organizers and attendees. These measures are under EU scrutiny for potentially breaching new artificial intelligence rules that prohibit real-time facial recognition.

Hungary's Culture Minister Balázs Hankó slammed the opinion in a X post, saying it amounts to letting "sexual propaganda tak[ing] precedence over child protection." "The lawsuit continues, but we will fight for our children and families — no matter how many countries join Brussels' attack," he said.

The European Commission did not respond to a request for comment about Thursday's court opinion.

The case is C-769/22.