Women, sexual orientation, gender identity, and constitutional developments in Hungary

Abstract In this article, we aim to offer a nuanced understanding of how different Hungarian constitutions have shaped the gender order, and what contextual variables have influenced this process. Drawing on an understanding of the state-socialist past and the dynamics between constitutional reforms and the jurisprudence of the Hungarian Constitutional Court—operating under both liberal and illiberal constitutions—we set forth the following arguments. Even though one might assume that the decline of the rule of law, the deterioration of democracy and human rights protection, and judicial capture facilitated by major constitutional changes would also cause a shift in the gender-related constitutional architecture and the jurisprudence of constitutional courts, an analysis of the Hungarian constitutions and the case law of the Hungarian Constitutional Court shows that this is not necessarily the case. The liberal Hungarian constitution (1989–2011), due to the lack of related definitions, did not shape the content of gender-related concepts; at the same time, both the Parliament and the Constitutional Court tended to take a traditionalist position. The adoption and successive amendments of the illiberal constitution (since 2012), which introduced increasing numbers of provisions related to gender issues that affirm earlier traditional views and direct the jurisprudence of the Hungarian Constitutional Court, have not facilitated equality between the sexes. It nonetheless serves as a preemptive barrier to claims by sexual minorities. The Hungarian Constitutional Court, under both liberal democratic and illiberal governments, has consistently followed a traditionalist position, with relatively little deterioration of its already established case law, which has been unreceptive to the new generation of gender-related concepts. To support these claims, we discuss constitutional developments in the areas of equality between women and men, abortion, private-life relationships, the concept of marriage and family, and self-identified gender.