The infringement proceedings – joined this month by France and Germany – target a law passed in 2021 banning the use of materials seen as promoting homosexuality and gender change in schools.

Touted by the conservative government of Prime Minister Viktor Orbán as protecting children, the law caused a storm of international criticism, with European Commission President Ursula von der Leyen calling it a “disgrace”.

The Commission, which referred Hungary to the European Court of Justice (ECJ) in mid-2022, has said it considers the law violates the EU’s internal market rules, the fundamental rights of individuals and EU values.

It is the first time the EU’s executive has taken a member state to the court over LGBTQ+ rights. With EU heavyweights now on board, activists see it as a chance for the 27-member bloc to underline its commitment to LGBTQ+ equality.

“This case, and the strong support we’ve seen, has the potential to be a real turning point,” said Katrin Hugendubel, advocacy director at LGBTQ+ organisation ILGA-Europe, highlighting the decision of countries such as France and Germany to join the infringement proceedings.

“Member states don’t take it lightly to actually intervene against another member state in the Court of Justice … (It shows) the EU is ready to stand up and protect the institution.”

The Commission’s proceedings against Hungary over the anti-LGBTQ+ law are also unprecedented in referring a member state to the ECJ for directly violating human rights enshrined in EU law, or what is known as Article 2.

Following debate last year over similar anti-LGBTQ+ legislation in Romania and Poland, rights activists said they hoped a judgment against Hungary would put the brakes on more copycat proposals.

“In countries where there is rhetoric coming from the government, I think they will think twice,” Rémy Bonny, executive director of the Brussels-based LGBTQ+ organisation Forbidden Colours, told Openly.

Romania’s Senate gave preliminary approval to a bill that would amend the nation’s child protection law to safeguard against “the popularisation of sex change or homosexuality”, while in Poland the president vetoed two bills that sought to restrict the teaching of LGBTQ+ materials in schools.

Hungary vows to fight

Orbán’s government has approved a series of anti-LGBTQ+ laws and Hungary is currently ranked 30th out of 49 in ILGA’s 2022 ranking of European countries’ LGBTQ+ rights.

It does not have marriage equality and bans people from legally changing their gender, though in a reverse for Orbán last week, the country’s president threw out a bill that would have allowed citizens to “report” LGBTQ+ parents to authorities.

Besides strong condemnation by EU leaders over the LGBTQ+ schools law, the bloc has withheld funding to Hungary over wider concerns relating to corruption, human rights, asylum and the judicial system – increasing Hungary’s isolation.

Orbán’s government has vowed to fight the Commission’s infringement proceedings, with Justice Minister Judit Varga saying the countries backing the proceedings had “given in to gender propaganda from Brussels and overseas“.

“Our children’s safety is our top priority,” Varga said in a statement shared on Twitter.

LGBTQ+ campaigners hope the ECJ will rule against Hungary for violating Article 2, an outcome they say would send the strongest signal. It is not clear if all the countries will back the suggestion of an Article 2 breach, however.

If the court rejected an Article 2 violation, it could still rule against Hungary on the grounds that the law breached the distribution of e-commerce and media services.

A judgment in the case is expected sometime next year.

Whatever the outcome, the Commission’s move is “nothing short of a revolution” in the way the EU functions, said Miguel Delgado, coordinator of the European University Institute’s European Union Law Working Group.

“The Commission is very stringent about accession but once (countries) are in it, it cannot police you – until now,” he said.

Reporting by Lucy Middleton.

GAY TIMES and Openly/Thomson Reuters Foundation are working together to deliver leading LGBTQ+ news to a global audience.