Boris Johnson has passed his Brexit deal. This is what it could mean for LGBT rights
Boris Johnson has passed his Withdrawal Agreement Bill (WAB), paving the way for the UK to Brexit on January 31, 2020. But what does it all mean for LGBT+ rights?
MPs voted the bill through on its second reading by 358 to 234, a majority of 124.
This means that the WAB will now move to a committee stage, where it will be scrutinised further. It must also pass through the House of Lords, but it is widely expected to be made law in time for the current Brexit deadline of January 31.
The human rights campaigner Peter Tatchell told PinkNews that as a result of Brexit, “LGBT+ people will lose the legal protection against discrimination that is enshrined in the EU’s Charter of Fundamental Rights.”
Article 21 of the Charter explicitly outlaws “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.”
Jonathan Cooper OBE, a barrister and human rights specialist at Doughty Street Chambers, told PinkNews that this piece of legislation is the only “freestanding right to equality which includes sexual orientation and gender identity”.
Under the WAB as it currently stands, the Charter will cease to have effect in UK law once we have left the EU.
Theresa May previously argued that such a move would not impact human rights protections in the UK.
According to a House of Commons Library post, “this is because the Charter did not create new rights, but codified rights and principles that already existed in EU law, and these would continue to apply as ‘retained EU law’ in the UK.”
Cooper explained that while the Equality Act also provides protections for LGBT+ people, it is limited.
“Whereas the EU Charter applies wherever EU law is engaged, the Equality Act is limited by the Equality Act. It applies to service providers, employers and employees – it doesn’t apply to individuals unless they are fulfilling one of these roles.”
The legal nuance was explained in more detail in a Brexit LGBT Impact Assessment which Cooper co-authored in 2018, commissioned by GayStarNews.
“The Charter is the highest level of law within the EU,” it read.
“So if a member state is discriminating against LGBT people in the context of the rules of the EU, the prohibition on discrimination will trump and the Charter will protect those LGBT people from any discriminatory laws.”
Cooper continued to PinkNews: “It’s sort of obvious. When you take away protections against discrimination on the basis of sexual orientation or gender identity, you are making people more vulnerable than they were before you took them away.”
Groups including the Equality and Human Rights Commission have questioned this logic.
UK courts could overturn EU rulings on LGBT+ rights.
Cooper said that there are also concerns regarding a clause in the WAB which will allow British courts to overturn rulings by the European Court of Justice (ECJ).
He pointed to a 1996 ECJ ruling, P v S and Cornwall County Council, which formed the bedrock of trans protections in the UK.
“If they’re now saying that cases settled by the ECJ can be challenged in English tribunals, that sort of thing could be reopened,” he explained.
“You could then find a situation where the English courts looked at P v S and Cornwall County Council and did not find the violation and said they didn’t apply. So you could find that the whole fundamental principle of trans protection in the UK could be challenged. It may not be a problem, but it’s a potential problem.”
Cooper also conjectured that laws could be passed which superseded the Equality Act, using the example of a religious freedom law which would allow B&B owners to discriminate against gay couples on the basis of their faith.
“The Equality Act could do nothing about that because it would be a more recent act of parliament, it would take precedence,” he explained.
“There is a fear that we will move away from where we’ve been in terms of LGBT rights – where LGBT rights and LGBT identities trump everything that seeks to undermine it – to a place where it will just be something that has to be taken into consideration.”
Government urged to strengthen LGBT+ rights after Brexit.
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The LGBT Foundation is one of many groups which have called on the prime minister to ensure that LGBT+ rights are protected during and after Brexit.
“Last week, the prime minister offered his commitment to lead a people’s government, for the entire country,” Emma Meehan, the charity’s assistant director of public affairs, told PinkNews.
“This must include a guarantee to protect and extend the rights of LGBT people, and a commitment to deliver a safe, healthy and equal future for our communities.”
Paraphrasing Johnson’s election slogan, she added: “It is time to get equality done.”
Stonewall’s director for campaigns, policy and research, Laura Russell, told PinkNews that leaving the EU “should not mean the loss of human rights and equality legislation.”
“It is vital that LGBT people’s hard-won rights will continue to be protected on the day the UK exits,” she said.
“We will carry on working together with other human rights organisations to protect the fundamental rights and equalities the LGBT community have worked so hard for.”
PinkNews has contacted the Government Equalities Office for comment on these issues.