Transvanilla Transznemű Egyesület

Press release: The ruling of the Constitutional Court fails to resolve the situation of trans people

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In a decision by the Constitutional Court in response to a request by a lower court, a provision which prohibits legal gender recognition may no longer be applied to pending cases, as this would amount to retroactive legislation.1

While this decision emphasises the guarantee of legal certainty, it only raises further questions in connection with pending proceedings, as it fails to create the conditions for legal gender recognition in Hungary.

Upon the request of a judge in the Hungarian town of Miskolc, the Constitutional Court of Hungary reviewed the constitutionality of applying, to pending proceedings, legislation that bans name and gender changes. The Constitutional Court concluded that to retroactively prohibit transgender persons from legal gender recognition is contrary to Hungary’s Fundamental Law (or constitution), citing that “when acting within the scope of its powers to protect institutions, the state may not enact such procedural frameworks that unconstitutionally limit any of the rights guaranteed by the Fundamental Law”. Accordingly, the Court quashed the legislation’s retroactive effect, which is an important partial ruling with regards to legal certainty.

Transvanilla Transgender Association however expresses its concern that the Constitutional Court did not review the constitutionality of earlier or existing legislation in connection with gender and name changes, which legislation formed the basis of the case at bar. As several of the Court’s justices noted in a separate decision in this case: “With the present decision, the Constitutional Court has failed to take a stand on the issue of the constitutionality of the earlier or existing legislation in connection with gender and name changes, or on the issue of the connection between changes to gender or gender markers and the inviolability of human dignity.” 

All of the foregoing results in further uncertainty with regards to the application of legislation in the assessment of pending proceedings. In February 2020, well before the enactment of the current legislation, a judge from Debrecen requested the constitutional review of the former (and now repealed) legal provision (section 7 of Government Decree 429/2019) that permitted legal gender recognition.2 Disregarding the 90-day time limit, the Constitutional Court has still not handed down a decision with regards to the above request for constitutional review; just as it has not addressed individual constitutional complaints filed by Transvanilla and by trans persons in connection with the new legislation. Thus, the Constitutional Court’s decision creates further problems and poses a threat to legal certainty. 

Transvanilla believes that the Constitutional Court would have only succeeded in guaranteeing legal certainty if it had fully reviewed the individual constitutional complaints and requests for review from lower courts bearing on gender changes, and if it had then handed down a substantive decision that would allow for legal gender recognition in Hungary. Given that the Constitutional Court’s decision fails to resolve the current unconstitutional situation and also fails to compel the Hungarian Parliament to enact legislation in line with international human rights norms, our struggle must continue. Transvanilla will continue legal proceedings before both Hungarian and international tribunals. A substantive decision is soon expected in a case regarding the rights of trans persons that the organisation has brought before the European Court of Human Rights. 


1. https://www.alkotmanybirosag.hu/dontes/ab-hatarozat-torvenyi-rendelkezes-megsemmisiteserol-2
2. http://public.mkab.hu/dev/dontesek.nsf/0/E85C1A850EEE8EE7C125852900526733?OpenDocument

 

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