Human Dignity: Hungary for Change? The EU, Backsliding States, and the First Foundational Value

Where there is democratic backsliding, it is perhaps unsurprising that vulnerable groups, such as trans people, face particularly significant threats to their rights. Important questions surround the legality of Hungary’s recent attack on trans rights, namely Art.33 of the ‘omnibus Bill’, but this post also turns to the bigger picture of the EU’s management of Hungary. It is argued that the EU lacks a comprehensive conceptual framework, embedded in human dignity, to tackle the challenges faced by backsliding states. Going forward, the EU arguably requires a fundamental conceptual shift in recognising its first foundational value of human dignity under Article 2 TEU, alongside liberty and equality, to tackle this crisis and future crises, where the fundamental rights of us all are at risk.

Context

Since the COVID-19 pandemic has prompted many member states across the EU to declare states of emergency, there have been concerns raised of the uses and abuses of such power, notably in Hungary. The European Parliament has highlighted the attack on trans people’s rights in Hungary during the pandemic as a particular concern. The rolling back of trans rights in Hungary has not been restricted to the pandemic though, with reports that legal gender recognition has been near impossible since 2018. Last week, however, the Hungarian Parliament passed Article.33 of the omnibus Bill T/9934, which replaces ‘sex’ with ‘sex assigned at birth’ in the national registry and national documents. This makes it impossible for trans people to change their legal gender. The proposed introduction of Art.33 was condemned internationally, from human rights organisations, the UN High Commissioner on Human Rights, the European Professional Association for Transgender Health, the European Society for Sexual Medicine, 63 Members of the European Parliament, and the European Parliament as a whole. The bill contravenes the Council of Europe’s Committee of Ministers recommendations of 2010 and the Parliamentary Assembly’s Resolution 2048 (2015). The bill is also in contravention of the European Court of Human Rights’ case law of Goodwin and X. The Hungarian Constitutional Court also recognised legal gender recognition as related to the ‘inner core of human dignity’ in 2018.

Human Dignity as the foundation of Human Rights

Human dignity has a unique history at the core of EU constitutionalism. The starting point for modern legal understanding of human dignity is arguably the 1948 Universal Declaration of Human Rights (UDHR). The UDHR recognised the inherent dignity and the equal and inalienable rights of all members of the ‘human family’. It was significant in its universal claims and inspired by the ‘barbarous acts’ of the war.  Since 1945, the increased visibility of human dignity in Member States’ constitutions represented the rejection of past atrocities, arguably underpinned by Kantian notions of the individual’s inherent worth through their capacity of self-determination. Post war constitutionalism also saw human dignity as the new foundation to human rights, in the preamble to the UDHR, the EU Charter and the TEU. Human dignity is noticeably visible as the first foundational value under Article 2 TEU, as well as a fundamental inviolable right under Article 1 EU Charter. Under the Charter, human dignity is contained within Chapter I titled ‘Dignity’ and uniquely placed amongst other core prohibitions, including the right to life, prohibition from torture, together forming a ‘constellation of core prohibitions’. Human dignity therefore forms part of the very substance of rights under the Charter and constitutes the basis of all fundamental rights. The inviolability of human dignity also gives it unique strength in going beyond other rights: dignity must be respected, even where a right is restricted.

Human dignity has a distinctive history in Hungarian constitutionalism too, particularly in its post-communist transition to liberal democracy. However, the enshrinement of dignity under the 2011 Fundamental Law was drafted so as to connect it to particular religious and family values. This has had a particularly damaging impact on women, homeless people, and refugees so far. This drafting is unique in EU constitutionalism terms and draws it away from its inviolability and equal application. It is therefore not only important to give visibility to human dignity, but to consider the ways in which it is defined and protected.

The Peculiar Invisibility of Human Dignity

Now turning to the specific case of Hungary and Art.7 TEU, most reference to Art.7 has been in relation to the rule of law, despite human dignity’s role as the first foundational value of the EU and its conceptual potential in accounting for the specific challenges posed by backsliding states.

In September 2018, the European Parliament found a clear risk of breach of the values upon which the Union is founded (Article 2 TEU), pursuant to Article 7(1) in relation to the situation in Hungary. Throughout the resolution, human dignity was effectively invisible and mentioned just three times: in relation to Roma evictions, a direct quote from Article 2, and a quote from the Fourth Amendment of the Fundamental Law. Despite the invisibility of human dignity, issues engaging questions of dignity were still present throughout the resolution, such as religious freedom, equality, minority rights, and economic and social rights.

In assessing Hungary’s treatment of Roma people, the Resolution gives prominence to information reported by the Fundamental Rights Agency (FRA). The FRA has increased its role in reporting on human rights issues across the EU and has been used to inform this assessment in relation to Art.7. As a specialist body on fundamental rights, the FRA offers valuable insight in its approach to fundamental rights protection. The FRA relies on human dignity throughout its reports, including on trans people. In its 2018 report, human dignity featured prominently and even in the first sentence of its 240-page document addressing issues affecting elderly people. Human dignity is arguably able to conceptually compliment and rigorously protect fundamental rights, particularly of vulnerable people.

Elsewhere in the resolution, the treatment of migrants, asylum seekers and refugees was assessed. It highlighted the hostile rhetoric (and resulting discrimination) employed against migrants by the Hungarian Government, and the restrictive approach to refugee applications. Human dignity plays a crucial role in EU law on asylum seekers and refugees, arguably because its universality and inviolability is able to conceptually reach beyond their legal national status. It protects these vulnerable groups from being treated as mere objects by the state and fellow citizens (echoing Kant). This refers to a vertical relationship between individual and the state but also echoes UDHR ‘brotherhood’ in illustrating an additional horizontal relationship of dignity and the reciprocity of rights.

A Worthy Future for the EU’s First Foundational Value

The current mechanisms aimed at protecting Art.2 values, in particular Art.7, have failed to deal with backsliding states, such as Hungary. Perhaps one of the reasons for this failure, alongside many others, includes the lack of conceptual and legal prominence given to human dignity. For many years, Hungary has specifically targeted Roma, homeless people, women, and migrants. Those most recently at risk in Hungary include LGBT+ people, and just last week we have observed Orbán’s all-out attack on trans rights, despite being contrary to international human rights standards. It is possible (and likely) that other states at risk of backsliding will follow in stripping back the rights of various groups including LGBT+ people (see here and here), so the EU must be prepared for this. Going forward, the EU should give due prominence to its first foundational value of human dignity, as it represents the core of EU constitutionalism. As witnessed from the 2011 Fundamental Law, it is also important for the roots of modern legal dignity to be respected, including its inviolability and application to all equally, regardless of (for example) gender identity. Perhaps dignity, liberty and equality together, according to Baer’s fundamental rights triangle of constitutionalism, may be able to holistically conceptualise the complex issues arising from backsliding states. Increased visibility of human dignity throughout Art.7 proceedings, in conjunction with liberty and equality, may offer the stretch needed to conceptually, legally and politically tackle the risk that backsliding states pose to all people.

Mollie Gascoigne,

PhD Candidate (ESRC)

University of Exeter Law School