Hungary’s Constitutional Court (Ab), has ruled that a question proposed for a government-initiated referendum would allow the National Assembly to enact legislation in accordance with the Fundamental Law no matter how the majority votes on it. Thus the court has annulled a previous ruling by the Curia High Court on the matter.
Earlier this year, the government proposed five questions for a national referendum on “child protection” issues, which were certified by the National Election Commission (NVB) but challenged in court by human rights organizations. The Curia approved four of the questions, but in October ruled that the question “Do you support making gender reassignment treatments available for minor children?” was not in accordance with Hungary’s Fundamental Law.
Justice Minister Judit Varga then turned to the Ab to appeal the ruling, claiming that the Curia’s decision had deprived the government of the right to a fair trial.
The Ab ruled in favor of the government, writing that:
A referendum, as a legal institution for the direct exercise of democratic power, would lose validity if the Curia refused to authenticate a referendum issue that could lead to a legislative solution in accordance with the Basic Law.
Article XVI, para. (1) of the Fundamental Law states that “Hungary protects the right of self-identity according to the birth gender of the child.” Therefore, it cannot be deduced from the Curia’s interpretation, according to the Ab, that the state cannot prohibit gender reassignment for children, and in fact, “a legal environment and institutional system may be established that guarantees children the protection in the Fundamental Law with respect to certain gender-reassignment treatments, taking into account the rights of children to healthy development enshrined in the Fundamental Law.”
Parliament has already approved of the four other questions on the referendum to be voted on in the spring, and will only hold its next regular session in February. If the ruling Fidesz-KDNP coalition insists on including the fifth question in this referendum, Parliament could conceivably be reconvened in January.