Anti-Male Hungarian Legislation

Below comes a DeepL translation of this post (archive).

Editor’s note: an updated version of the previous article has been published due to changes in Hungarian legislation. There has been a small but important improvement in the area of family law (the possibility to award joint parental custody if there is no agreement between the parents) but otherwise, men in Hungary are still at a noticeable legal disadvantage.

Whether a state’s legislation ensures equality between the sexes before the law is a particularly important measure of equality between women and men. To see what the situation is in Hungary in this respect, we have collected a list of laws that can be considered discriminatory on the grounds of sex.

We can see that in Hungary women and men are still not equal before the law. There are several laws that differentiate between the rights and obligations of women and men on the basis of gender. We see that all of them discriminate against men. In our view, this is due to systemic problems of gender inequality, such as the lack of international and national legal obligations guaranteeing equal rights for men, the high level of social acceptance of discrimination against men, and the low level of advocacy by national and international men’s movements.

While Hungary is bound by international treaties on women’s rights (e.g. Beijing, 1995), which Hungary has signed and ratified to prohibit discrimination against women, the prohibition of discrimination against men is not regulated in this way internationally, so the room for maneuver of domestic political forces is not as limited as in the case of discrimination against women. Gender-based discrimination against men is used systematically in Hungary and in neighboring countries for ideological, economic and other political reasons, without any obstacles. In addition to the lack of international legislation, there is also the problem that there is no meaningful criticism of this in public life in Hungary, there are no significant civil organisations such as women’s organisations that represent men’s rights to equal rights or men specifically affected by the law, and public opinion is generally less sensitive to these social issues affecting men.

Below we look at some of the domestic gender discriminatory laws.

1. Fundamental Law:

In the hierarchy of laws, the Constitution (now the Fundamental Law) is above all other laws, and therefore above all other legislation. Act CXXX of 2010 on Legislation states that no legislation may be contrary to the Fundamental Law.

While Article XV, point 3 of the Fundamental Law states that “women and men have equal rights”, the Fundamental Law defines equality in such a way that the distinctions it itself enshrines do not violate it. Accordingly, point 5 of the same article adds that ‘Hungary shall take special measures to protect families, children, women, the elderly and the disabled’. In this, it sets out the unconditional protection of women, instead of setting out the protection of women and men in the event of their respective situations of disadvantage or vulnerability. The exclusion of men from protection is particularly worrying given the number of areas in which men are disadvantaged in society (for example, in terms of their health or educational prospects).

The Constitution also makes specific provision for unilateral military service for men, less favorable access to pensions and differentiates on the basis of gender in parental benefit entitlements:

(1) “During a state of emergency, or if the National Assembly decides so in a situation of preventive defense, men of age and of Hungarian nationality residing in Hungary shall perform military service.” (Article XXXI, point 3)

(2) “A law may also lay down the conditions for entitlement to a state pension with regard to the requirement of increased protection for women” (Article XIX, point 4)

(3) “In the event of maternity, sickness, invalidity, disability, widowhood, orphanhood or unemployment through no fault of his own, every Hungarian citizen shall be entitled to the benefits provided for by law.” (Article XIX, point 1)

Thus, the Constitution does not guarantee equal rights for men, but discrimination. It can also be inferred from this that, while any discrimination against women is unconstitutional, men’s rights can be endlessly curtailed on this basis. This assumption was confirmed beyond doubt when the Constitutional Court rejected a referendum initiative on equal pensions for men (archive) on the grounds that women had a “right to more favorable treatment guaranteed by the Constitution”. The AB’s resolution reads as follows:

“Women are entitled to special protection under Article XV(5) and the second sentence of Article XIX(4) of the Fundamental Law, and their entitlement to a pension may be different from that of other persons, also in view of the requirement of increased protection. It follows from both rules that women may claim more favorable (not identical) subjective rights than men, in particular in the field of entitlement to state pensions (determination of the conditions of entitlement laid down by law), on the basis of the second sentence of Article XIX(4).

(…)

Women have this right guaranteed by the Fundamental Law. Whether the interpretation of the NEC or the interpretation of the Curia is taken into account, the substance of the certified referendum question is that it seeks to ensure that men have the same pension rights as women, i.e. the same benefits. This means that a successful referendum would prevent both Article XV(5) and the second sentence of Article XIX(4) from being applied, and would in fact render them meaningless.”

Despite the injustice and unfairness of the other laws, the one contained in the Fundamental Law deserves special attention, since it gives way to the others, by not guaranteeing in any form the right of men to equal treatment, and even by requiring and encouraging the legislator to discriminate against men.

2. Pension law:

According to Article 18 § 2a) of Act LXXXI of 1997 (Act LXXXI of 1997), a woman who has at least forty years of qualifying period is also entitled to a full old-age pension regardless of her age. This means that after 40 years of service, only women can retire, not men (the Women 40 program). The government has justified this by saying that it is a program to honour women and to enable grandmothers to look after their children. The ideological content of this argument is also highly objectionable, as it is based on a world view that fathers do not play an equally important role in the life of the child, or that grandfathers cannot play this role (which, by the way, many men today cannot do precisely because they are not old enough to retire).

3. Military service:

Conscription refers to enlistment and military service. Military service in Hungary has not been abolished, only suspended, and the Ministry of Defence still keeps records of the data required for military service, conscription and call-up of Hungarian men aged between 18 and 55. According to Article 1(b) of Act XCVII of 2013, only men are subject to compulsory military service (“men of Hungarian nationality who have registered their residence in Hungary after the introduction of compulsory military service”). This Act is also the basis for several other Acts regulating the obligations of persons subject to compulsory military service (unilaterally, because of the gender discriminatory nature of the Act on compulsory military service, men).

4. Parental leave:

In the six months following the birth of a child, the mother is entitled to 180 days of maternity leave, and with it infant care allowance (CSED, formerly TGYÁS), while the father is entitled to only 5 days of “paternity leave”. Today, the law only allows the father to go on CSED if the mother dies or leaves the household because of her health condition. If the mother leaves the father and the child, or the parents decide that the father stays at home, the father is then only entitled to the significantly lower amount of GYED for the first six months. The situation is similar for adoptive parents. The man who has fostered the child with a view to adoption is entitled to CSED if the woman who intends to adopt the child with him “leaves the household where the child is being cared for because of her health” or if the woman who adopted the child dies.

The parental leave scheme for men does not provide for a similar period (6 months) and benefit (100 per cent of gross salary). Apart from the five days of paternity leave, no leave is specifically granted to fathers. These laws not only limit fathers’ leave rights, but also convey an inferiority of fathers, of the father-child relationship, and promote greater labour market participation by men at the expense of their participation and role in the family. It is noteworthy how very low and disproportionate the 5 days of paid leave for fathers are compared to Northern European countries (the table below shows how much paid leave is specifically granted to mothers/fathers in each country and how these are proportionate).

5. Prohibition of termination

Before the birth of a child, under Act I of 2012 on the Labour Code, only the mother is protected among couples expecting a child, and the employer may dismiss the father-to-be. Protection in the workplace is justified not only because of pregnancy, but also because a parent with a young child is a less flexible and less stressful workforce for the employer than a parent without children, to avoid the employer terminating the prospective parent before the birth of the child and to ensure the family’s livelihood after the birth of the child. In other countries, such as Iceland, the law also protects fathers-to-be.

There is a similar provision for unpaid leave. During unpaid leave to care for a child, the employer cannot terminate the employment relationship, but if both parents take unpaid leave, the man is not protected.

With regard to reproductive procedures, the prohibition of dismissal applies for the duration of the woman’s treatment (but not more than 6 months from the start of the treatment) for human reproductive procedures in accordance with the law. No protection for termination of a reproductive procedure shall be granted to a man.

6. Protected persons

A protected person here means that the employer is obliged to give reasons for the dismissal and may only dismiss the employee if there is no other job vacancy corresponding to the skills, qualifications or experience required for the job held by the employee or if the employee refuses an offer of employment in that job. There is a section of the Labour Code that states that mothers and fathers raising their children alone are protected persons until the age of 3. In other words, in a typical family where the mother and the father raise the child together, only the mother is a protected person, and fathers are also discriminated against in this respect.

7. Responsibility for having children, right of self-determination

In Hungary today, the birth of a child depends on the woman’s decision, as a consequence of the freedom to dispose of pregnancy, one of the manifestations of the right of women to self-determination enshrined in AB 48/1998 (23.11.1998). However, as Dr Andrea Pálfalvi points out in her study “Is men’s right to self-determination incomplete?”, it is not only a question of a woman making a decision about her own body, but also a decision about whether she wishes to take on the responsibility of having a child. If she wishes, she can abdicate that responsibility.

Hungarian law does not allow men to do the same. Men should have indisputably the same rights within their freedom of self-determination – in other words, a man should have the same opportunity to decide whether he wishes to have a child, i.e. whether he wishes to assume the responsibility that goes with it, when he becomes aware of a pregnancy. In the case of women, this freedom is defined not only during pregnancy but also after the live birth, since a woman who, while retaining her pregnancy, decides not to become a parent after giving birth can legally adopt her child. In her case, therefore, motherhood as a fact is not subject to the same obligations as paternity.

8. Presumed paternity

If a child is born within marriage, the husband is presumed to be the father. If a person becomes aware of serious information that the presumed father is not the real father, PTK X. § 4:111 provides that:

“A suit to rebut the presumption of paternity may be brought by the minor child and the mother with the consent of the guardianship authority up to the age of three years. The other persons entitled may challenge the presumption of paternity within one year from the date on which the presumption of paternity arises.”

So while the mother can bring proceedings in court to rebut or rebut the presumption of paternity within three years, the presumed or real father can only bring proceedings within one year. After this time limit, he can no longer object in any way that the child is not his or bring a case against someone else for being presumed to be the father of his child. (The parents separated after conception and the mother has since formed a relationship with another man.)

9. Student loans

Half of the Student Loan debt for women with two children and all of the Student Loan debt for women with three children will be forgiven from 1 January 2018. Government Decree No 291/2017 (X. 3.) provides as follows:

“Section 18/A (1) A woman borrower shall receive a non-refundable state subsidy (hereinafter referred to as child subsidy) equal to fifty per cent of her outstanding student loan debt in the event of the birth or adoption of a second child, and one hundred per cent of her outstanding debt in the event of the birth or adoption of a third or additional child(…)”

The purpose of the student loan is to help children from families from disadvantaged backgrounds to continue their education. This is where the law makes a gender distinction, a distinction that adversely affects the opportunities and motivation of boys, who are already under-represented in higher education. As well as devaluing fathers, it also sends out a social message that the state does not consider it as important and worthwhile to support boys’ further education as it does girls’.

10. Tax exemption for four or more children

The father is not entitled to the lifetime exemption for four children. The law (LXXIII. 1 of 2019) defines the entitlement as follows: “A mother of four or more children” who “is entitled to family allowance as a parent by blood or adoption for the child she is raising, or is no longer entitled to family allowance but has been so for at least 12 years and the number of children referred to in (a) and (b) is four.”

11. Entitlement to a job-search allowance

Article 25(d) of Act IV of 1991 (on the promotion of employment and unemployment benefits) distinguishes between the mother and the father as regards entitlement to a job-seeker’s allowance. According to this provision, a job offered by a public employment service is considered suitable (i.e. entitlement to jobseeker’s allowance ceases) if the daily travel time between the offered job and the place of residence, by public transport, does not exceed three hours or two hours for a jobseeker who is a woman with a child under ten years of age and a man with a child under ten years of age. In other words, it only provides for more favourable job-seeking conditions for the father than those generally granted to the mother when the father is raising the child alone.

• Conclusion

To sum up, legal discrimination against men in various areas of life (pensions, education, military service, parental rights, etc.) is present in Hungary. The Constitution itself is discriminatory: instead of equality, it is a guarantee of institutionalised discrimination against men (the Constitutional Court’s key phrase is that “women may claim more favourable – not equal – rights than men”).

Given how far we are from equality, it is essential to reform the legal system comprehensively so that the prohibition of discrimination on grounds of sex (as a protected characteristic) applies equally to the protection of both sexes. In the absence of international legislation and in the face of headwinds from domestic policy, this can only be achieved if domestic civil movements actively take the initiative to enforce this principle with the legislator and regularly raise public awareness of the problem.