Poland, Hungary, and LGBTQ rights: the responsibility and response of the European Union.

Poland and Hungary are on a mission to attack LGBTQ+ rights, earning outrage from the rest of the European community – even from member states who themselves are not particularly keen on reducing LGBTQ+ discrimination. In the meantime, the European Union struggles to develop an impactful response.

The Polish and Hungarian governments’ intolerance towards their Lesbian, Gay, Bisexual, Transgender and Queer (or Questioning) (LGBTQ+) community has reached new levels of concern. Since both countries are members of the European Union (EU), the expectation was for the EU to respond to the discrimination, however, it seems that the response is not particularly effective in defending these rights. Why?

What have Poland and Hungary been up to?

During the summer of 2021, Hungary introduced a new law – ‘’anti-LGBTQ’’ law, that bans the depiction of homosexuality to people under the age of 18. The law also affects sex education and advertisement. The new measures control the distribution of LGBTQ+ content by forbidding selling books with narratives about sexuality or gender change within a certain radius of schools or churches, and making a requirement of wrapping up children’s books that portray homosexuality positively.

Poland has been particularly ‘active’ in pushing discrimination against the LGBTQ+ community. Back in 2020 almost a third of the country – around 100 towns and regions, declared resolutions of becoming ‘’LGBTQ-free zones’’ – as LGBTQ+ rights are supposedly an ‘’attack on its traditional values’’. As for the latest actions from Poland, its government is trying to pass a bill that would ban all public expressions that support LGBTQ+ rights and equality – pride for example.

Why are these discriminatory actions happening?

When joining the EU Poland and Hungary had to follow the accession process and adopt legislation that protects LGBTQ+ equality. However, this legislation has been framed by the two current governments as a threat to their nations and cultures. In 2006, Poland’s Kaczyński government expressed a strong disregard against the EU’s approach to LGBTQ+ rights, stating that the government will not adopt its ‘’loose’ attitude towards sex’. The Hungarian government has similarly claimed that its sovereignty is ‘’endangered by the EU’’ as more tolerant views of the LGBTQ+ community are ‘pushed’ upon the country. Both countries have seen the rise of anti-gender conservative movements that are closely linked to the main parties in the government. Progressive ideas about gender, human rights, and LGBTQ+ identities – and indeed the EU itself – are framed as threats to state sovereignty and national values.

In 2004, with the accession of Eastern European countries to the Union, the EU’s ability to enforce conditionality has weakened. For the most part, LGBTQ+ rights protection is a national responsibility – making the monitoring of implementation weaker. For instance, Poland has not made any major improvements towards protecting LGBTQ+ rights since joining the EU, whereas, Hungary, while allowing same-sex civil partnership, has pushed back largely reversing  most progress made.

Both Hungary and Poland are rather fragile democracies and have been facing democratic backsliding following the 2008 economic crisis in Europe and the 2015 refugee crisis. In a context of crises, weak democracy and backlash against the EU’s liberal agendas, governments have been able to justify their conservative social policies, making it much easier to introduce new discriminations.

The European Union, LGBTQ, and responsibility

The European Union promotes the rights of the LGBTQ community through emphasizing its values. Article 2 and 3 of the Treaty on European Union guarantee equality, respect and protection of human rights, and sets the combat against exclusion and discrimination as core values. The EU Charter of Fundamental Rights, Article 21 specifically, prohibits any kind of discrimination, including on the basis of sexual orientation. Therefore, the moves of both states are in breach with these texts. Article 7 of the Treaty on the EU, aims to ensure that all EU states respect the common EU values and laws by providing means of enforcement and measures in the case of a breach of values by a Member State. However, Article 7 requires a unanimous vote from the European Council (minus the state under investigation) to launch an infringement procedure that can lead to sanctions, including a suspension of national voting rights. But since Hungary and Poland have formed a coalition to protect each other, this legal tool cannot really be used.

In 2020, the Commission passed its first-ever LGBTQI Equality Strategy 2020-2025. Its aim is to gather all European Union actors to acknowledge the discrimination the community faces and offer a series of actions for the successful integration of LGBTQI equality in all policy areas.

In practice, it can be argued that the EU is a rather conflicted normative power when it comes to dealing with LGBTQ+ rights. It prefers non-coercive methods and a ‘value-based’ approaches in dealing with sexual-orientation rights.

The response of the EU

Earlier in 2020, the Commission had already made a warning to any EU country: ‘no respect to basic human rights, no funding’. This leverage was used on six Polish towns – who had declared themselves as ‘’LGBTQ free-zones’’- which were threatened of not receiving extra funds ranging between € 5 000 and € 25 000. Consequently, a town in fear of losing the EU’s funding abandoned the declaration of being an ‘’LGBTQ-free zone’’.

As for Hungary, after its passing of the anti-LGBTQ law, it faced immediate outrage from several EU actors, including both from member states and the European Parliament. 16 member states, with Belgium, the Netherlands and Luxembourg in the lead, released a critical statement against Hungary, stating that the Hungarian legislation goes against the core values of EU. Interestingly, countries like Latvia were also backing the charge against Hungary, despite themselves not recognizing same-sex partnership.

In March 2021, as a response to both countries, members of European Parliament declared the EU as an “LGBTQI Freedom Zone”. By this they highlighted the broader context of vicious discrimination and urged the Commission to use its power – infringement procedures, legal texts and the new rule of law mechanism –  i.e. the suspension of funds if the EU law is not respected – to address the violation of LGBTQ+ rights.

Assessing the response

Looking at the EU’s response to Poland and Hungary’s actions, as well as it’s ‘responsibilities’, the EU seems to be rather inconsistent. During the accession in 2004, the EU stressed that Eastern European states should remove their discriminatory provisions, whereas now there is more leeway to diverge. Another issue is the EU itself – it struggles to speak in one voice. Examples of this include members of European Parliament voting in favour of calling the Commission to address the violation of LGBTQ+ people and pushing it to consider sanctions. But divergences are not just limited to EU institutions. There is a lack of common approach between member states as well. The charge against Hungary’s anti-LGBTQ law voiced by 16 member states out of 27 illustrates how, apart from the two culprits Poland and Hungary, the rest of the Member States are not on the same line when it comes to addressing discrimination towards the LGBTQ+ community in the European Union. Overall, the EU needs to work harder to acknowledge not just the discriminatory actions of Poland and Hungary, but also the need to defend and promote LGBTQ+ rights and protections in the whole Europe.

Kristine Briede is an International Relations and Politics student at UEA, who wrote this piece as part of her second-year module ‘Introduction to the European Union’ organised by Pierre Bocquillon.

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