Now that We’ve Left the EU, Will We Be Leaving LGBTQ+ Rights Behind?
Although what now seems to be in another lifetime, Brexit used to heavily dominate our headlines. The constant back-and-forth between Westminster and Brussels kept many on the edge of their seats, anticipating what life will be like once we finally leave the EU. However, less has been given to the impact this will have on our human rights, more specifically, LGBTQ+ rights. While there has been no dramatic change overnight, despite the transition period having passed, the EU can no longer be used as a preventative barrier to new laws or legislation being overturned.
Ultimately, the everyday rights LGBTQ+ people have enjoyed have only become part of UK law because it is part of EU law. The Amsterdam Treaty in 1997 created the opportunity to harmonise the EU, where it was explicitly stated in Article 13 that “[the EU] may take appropriate action to combat discrimination based on sex…or sexual orientation”. It is important to note that a crucial aspect of Article 13 is that it was permissive, “may'', thereby allowing Member States to interpret the Article in their own manner. When the Treaty was signed, former PM John Major was strongly opposed to Article 13. However, with the election of Tony Blair in 1997 and the emergence of New Labour, Article 13 was used as a segue into greater protection for the LGBTQ+ community.
It is evidentially clear that Europe had set the agenda for LGBTQ+ rights in the UK. The Labour Government could further these rights and solidify them into legislation, whilst being able to fall back on the EU if they received criticism. This gave way to the Employment Equality Regulation at the end of 2003, which aimed to protect LGBT people at work. Additionally, by being part of the EU, the Strasbourg court demanded that the UK finally got rid of offences that were only committable by gay men, in particular the act of ‘gross indecency’ which could have only been committed by consenting men. Despite this, the EU was slow to the mark in protecting the rights of trans people, keeping them in a legal purgatory of uncertainty. The Gender Recognition Act in 2004 allowed UK adults to legally change their gender if they meet certain criteria. However, many have found the process to be intrusive, costly and heavily bureaucratic.
Moreover, the EU Charter of Fundamental Rights provided express protection of lesbian, gay and bisexual people. However, leaving the EU means leaving the Charter. Whilst the EU is not the only mechanism preventing discrimination, Brexit brings the inevitable removal of the only international binding legal agreement that prohibits discrimination on the grounds of sexual orientation.
One could argue that the UK’s Human Rights Act and Equality Act render EU oversight redundant. Therefore, this must mean that LGBTQ+ rights will still be protected and remain largely unchanged. However, these acts can simply be amended by an Act of Parliament. The EU provided a mechanism to keep Parliament in check, and to prevent the simple overturn of legislation.
Indeed, comments from senior Conservatives and Cabinet members raise alarm. Firstly, and most notably, Iain Duncan Smith stated that a Conservative Government would reinstate the ban on gay men and lesbians serving in the armed forces, if this was requested by the Ministry of Defence (although, the MoD requesting this is very unlikely). Additionally, in relation to bed and breakfast owners refusing to allow a gay couple to stay in the same room together, Chris Grayling commented that owners are allowed to refuse accommodation if it offends their beliefs. Following the three months after the Brexit vote, homophobic attacks rose by 147%. While these comments and statements currently do not pose an imminent threat, the fact that senior members of government hold these views rightly brings about a cause for concern.
The UK is now a key player in establishing LGBTQ+ rights globally. However, this would not have been possible without the EU. The Blair and Brown administrations would not have gone so far to provide equality if they did not have the guise of the EU to fall back on. Currently, LGBTQ+ rights have not been changed as yet due to Brexit. However, the UK is now alone and without a fallback in terms of protecting the rights of LGBTQ+ individuals. Even if LGBTQ+ rights have not changed yet, they are at a greater risk of being changed now that we have left the EU and the Charter.