Following the UK’s exit from the European Union, the bulk of EU law has transitioned directly to the UK statute books, if only initially. At first glance, this would suggest that protections for LGBTQA+ people already guaranteed by the EU will remain in place in the UK. However, there are two important aspects to consider, which will bring far reaching implications for the British LGBTQA+ community.
1) The EU Charter of Fundamental Rights has been immediately scrapped following the UK’s exit.
The EU Charter of Fundamental Rights is the only legally binding, international human rights document expressly guaranteeing the rights of LGBT individuals. Article 21 of the Charter states that:
“Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.”
Following the UK’s exit from the European Union, the British LGBTQA+ community has immediately lost the only internationally binding legal protection they are afforded. The UK could opt to retain its commitment to upholding the Charter, however, of leave voting MPs, 93% voted against this, despite the vast majority of EU laws set to remain applicable after Brexit and into the foreseeable future.
2) Even if the UK adopts the European Convention of Human Rights, it will not be bound to the rulings of the European Court of Human Rights, giving British citizens little ability to challenge discriminatory law.
It can be argued that UK law has progressed in the direction it has for LGBTQA+ people thanks to the intervention of the European Court of Human Rights. The full decriminalisation of LGBTQA+ sexuality, the right of LGB people to serve in the military, an equal age of consent between heterosexual and homosexual partners, the removal of section 28 and legal protections against workplace gender discrimination relating to transgender individuals have all been implemented as a result of ECHR rulings. UK courts have consistently declined to rule on these issues, and where they have, rulings have been in the favour of the government.
In the absence of a codified UK constitution, LGBTQA+ citizens have relied on the EU to uphold their rights in the face of an often hostile government. Some have argued that the 2010 Equality Act provides sufficient protection for LGBTQA+ individuals, but in reality, the Act can be amended by a simple act of parliament, something that is increasingly possible given the newly elected Conservative majority government.
Given that, of leave voting MPs (who sat during the 2013 marriage equality debates), 58% voted against recognising same sex marriage in law, and that 59% either voted against or abstained on legalising same sex marriage in Northern Ireland in 2019, it would seem that the British LGBTQA+ community has valid reason for concern. Additionally, homophobic comments made by Prime Minister Boris Johnson and his subsequent refusal to apologize for said comments, pose a legitimate concern for a community still recovering from very public debates regarding their legitimacy and basic human rights.