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LGBT+ rights and Brexit: the facts

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The UK’s membership of the EU has strengthened protections for LGBT+ people in this country. Now Brexit is putting those hard-won rights at risk.

The UK government insists that its record on equalities is one of the best in the world, and that this will remain the case after the UK leaves the EU. Yet only last week the House of Lords voted to keep the EU Charter of Fundamental Rights after Brexit, dealing a huge blow to the government’s plans to exclude the Charter from the EU (Withdrawal) Bill.

As a gay man and the TUC’s LGBT+ Policy Officer, I am concerned by what excluding the Charter might mean for LGBT+ workers post-Brexit. The Equality and Human Rights Commission have published legal advice showing that its loss will lead to a reduction in rights for many workers post-Brexit, and this will certainly include LGBT+ workers.

It’s fair to say that the UK LGBT+ community is split on Brexit, particularly around the issue of whether LGBT+ rights and protections in the UK will remain as strong outside the EU as they are at the moment. That’s why I think it’s important to set out the facts about the history of LGBT+ rights in this country, especially as all the evidence shows that it was the EU rather than the UK that led the way on this issue over the last three decades.

So what are the facts about LGBT+ rights and Brexit?

The EU, the European Court of Human Rights and the European Court of Justice have frequently nudged and occasionally shoved the UK into granting greater rights and freedoms for LGBT+ people. Those who say otherwise have either failed to examine where our laws have come from or are in wilful denial of the facts, as this quick walk down memory lane will show:

  •     1982 – The European Court of Human Rights extends decriminalisation of gay sex to Northern Ireland.
  •     1996 – The European Court of Justice hands down a landmark judgement in a case brought by a British trans woman who was dismissed from her job because she underwent gender reassignment. The ECJ ruled (against UK government arguments) that the dismissal was a form of sex discrimination covered by EU law.
  •     2000 – The EU adopts Council Directive 2000/78/EC, requiring all EU countries to ensure equal treatment of LGB workers (following a successful trade union campaign).
  •     2000 – The European Court of Human Rights ends the ban on lesbians and gay men serving in the military.
  •     2003 – The UK government introduces the Sexual Orientation Regulations in 2003, just ahead of the EU’s final deadline for implementation. These protections were later incorporated into the 2010 Equality Act.
  •     2004 – Trade unions bring a case challenging the UK government’s implementation of the 2000 Council Directive. As a result, the court ruled that exemptions in the Sexual Orientation Regulations for religious organisations only applied to a very narrow range of jobs.
  •     2011 – EU law played a pivotal role in defending rights after the coalition government considered scrapping the 2010 Equality Act through its ‘Red Tape Challenge’.
  •     2017 – John Walker successfully relied on general principles of EU law to improve pension benefits for some same-sex partners. This case closed a loophole in UK law which allowed employers to pay same-sex partners smaller pension benefits then those paid to heterosexual couples.

I have left out many of the other LGBT+ rights that the EU helped to bring about, but full details can be found in the TUC’s LGBT+ and Brexit briefing.

To be clear, all the above examples were either:

  •     EU created laws
  •     ECJ jurisprudence/case law
  •     UK courts use of EU derived law and case law

And while it is true that UK legislation has sometimes gone beyond some of the EU-derived requirements, this has often been the result of extreme and sustained efforts by LGBT+ activists in the face of fierce resistance from segments of British society, including the government and different political parties.

In short, the UK’s membership of the EU has strengthened protections for LGBT+ people, and every step of the way the UK either resisted or dragged its feet.

What about civil partnerships or same-sex/equal marriage?

Surely that was the UK standing on its own to push for greater LGBT+ rights?

Well, it’s certainly true that the EU did not direct civil partnerships nor same sex/equal marriage provisions in UK law, but it’s also true that several EU countries were well ahead of the UK on this front. The Netherlands, Belgium, Spain, Norway, Sweden, Iceland and France all implemented equality in this area first, and LGBT+ Campaigners in the UK cited our need to keep pace with our EU partners at the time. By all accounts, this was a persuasive argument.

But surely the government won’t weaken LGBT+ protections?

With all our current protections it’s understandable why many people think LGBT+ rights are safe in the UK, especially since the Conservative Party has shifted from a position of introducing section 28 banning the ‘promotion’ of homosexuality to legislating for same-sex marriage.

However, when we leave the EU all those protections will be at risk. Future governments would have unconstrained freedom in areas currently governed by EU law relevant to LGBT+ rights and employment, enabling them to scrap the protections at a future date.

To believe this is not possible is to ignore past and present trends on LGBT+ rights. In the 1920s, Germany was one of the best places to be LGBT+, but only a short while later things had taken a dramatic turn for the worst for LGBT+, disabled, and Jewish people, to name but a few. More recently, we have seen Bermuda roll back LGBT+ rights on equal marriage. And right now in the US, President Trump is consistently and vociferously attacking hard won LGBT+ rights.

So now is not the time for complacency and hyperbole on our LGBT+ credentials. We must not lose the hard-won rights that come from the EU, and we must make sure that UK workers get the same rights as workers in the EU in the future. And we, the LGBT+ community, our allies and trade unionists must be vocal on this point.

Make sure people know where their LGBT+ rights have come from. Use your voice, be loud and be heard. Let’s make sure our rights aren’t diminished.

In April 2018 Steve Turner, Assistant General Secretary of Unite the Union and Europe Spokesperson for TUC’s General Council took part in a webinar to answer questions and discuss Brexit and workplace rights. You can watch the webinar here (30 mins).

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