Brexit could put all the progress we have made on LGBT+ rights in jeopardy, warns Heather Peto
This is the last trans awareness week before scheduled Brexit. The government excluded transferring the Charter of Fundamental Rights of the European Union into United Kingdom law, so an avenue for improving transgender rights through the courts is about to be lost.
It was EU law and the European Court of Justice (ECJ) which first gave trans people employment rights in the UK. In 1996 the ECJ decided in P v S & Cornwall Council that the UK broke the equal treatment directive by discriminating on the grounds of sex of a person undergoing gender reassignment.
Scare stories during the consultation on reforming the Gender Recognition Act (GRA), remind us just how important supranational rights and courts have been to enforce LGBT rights. Courts make their judgements based upon facts not scare stories and misinformation. A lot of the scare stories about reforming the GRA claimed people would change their gender for a day, to get into female spaces. If those scare stories were before a court they would be thrown out as irrational and false. The GRA only allows people to change their gender if they live as their affirmed gender full-time and permanently, if someone falsely pretends, they face a severe penalty of up to two years in jail. The court would also point out that trans people have had the right to go into same sex spaces/occupations for the last eight years since the Equality Act was passed in 2010. The Equality Act never required a Gender Recognition Certificate to go into these spaces and occupations. Trans people can be excluded from single sex spaces & occupations if it is ‘proportionate’ to a need.
Proportionate is central to the principle of EU law and the Charter, it is a bulwark against knee jerk reasons to deny minorities rights. Say if one member of a given minority did some terrible crime, the right-wing press often used that to argue that all people from that minority are tainted and so should have rights removed. The ‘proportionate’ principle of EU law prevents a minority right from being tainted by one bad apple. Will we lose this with Brexit? We will certainly lose the ability to appeal UK court decisions to the EU for not being proportionate.
With the government’s legislative agendas crammed, bills to introduce further equalities only come around once in a blue moon. In those interregnums the march of equalities has continued through the courts. The EU Charter has until now been the best hope for improving trans and non-binary people’s rights and equalities. The ‘right to be forgotten’ might well have been extended to preventing Google and social media dead-naming trans people. The recent rejection by UK courts of a non-binary marker on passports would probably been overturned at ECJ level because other EU countries recognise non-binary. The long NHS waiting times for transgender people could be challenged under Article 35 the right to high level health and healthcare. The same article could be used to ensure PrEP is available for all.
I was just finishing this article when the 584-page withdrawal agreement was published. I wish it offered long-term hope – but it doesn’t. However, Article 127 within it, may make the government have to amend its EU Withdrawal Act and reinstate the Charter for the period of transition.
I am sure the European Research Group will love that.
Heather Peto is Labour Trans Officer. She tweets @heatherisone
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