Many LGBT rights and protections we take for granted are founded on principles contained in the EU Charter of Fundamental Rights and/or have come about as a consequence of the Charter or other EU law – for example:

  • the only express right in international law to non-discrimination on the basis of sexual orientation (EU Charter, Article 21)
  • standalone protection of the rights of trans people (Equality Directive 2006/54)
  • equal age of consent for straight and gay men
  • the repeal of section 28 – introduced by the UK Government in 1988, this outlawed the so-called ‘promotion’ of homosexuality in schools
  • same-sex marriages

The Government considers the EU Charter of Fundamental Rights is now unnecessary to protect LGBT people, saying:

  • the UK Equality Act 2010 provides comprehensive protections
  • this expressly outlaws “discrimination and harassment related to certain personal characteristics” – with sexual orientation a “protected characteristic”
  • it goes further than EU law in certain areas – including protecting LGBT people from discrimination from goods or service providers, such as shops or restaurants

After Brexit, the Government also plans to remove the legal standing of the European Court of Justice (ECJ) – meaning people will be unable to go to the ECJ to enforce their rights.

BUT there is evidence that LGBT people may have more protection under EU law than they do under UK law. For example:

  • for 11 years, an employee fought the Government and his employer to leave his work pension to his same-sex partner
  • in 2017, the employee won his case using the EU Charter – this prohibits discrimination on the grounds of sexual orientation
  • in 2006, the Government refused to award a retirement pension at 60 years to a transsexual who had undergone male-to-female gender reassignment surgery
  • the ECJ overturned this decision, requiring the UK legally to acknowledge her female gender

And the Equality Act can be amended by successive Governments, potentially exposing the LGBT community to the whims of UK politicians

  • some of whom have openly homophobic and transphobic records, and are opposed to the Human Rights Act
  • with the EU Charter in place, it would be very difficult to amend the Equality Act
  • without the Charter, the Act could be amended to say for example:
    • same-sex partners are no longer entitled to an employee’s pension
    • LGBT people should be banned from the military
    • guesthouse owners can decide who can stay

After Brexit

  • the LGBT community is unlikely to benefit from new EU laws – for example, the EU is thought likely to expand cross-border protections for same-sex couples
  • Currently, the partner of an LGBT person is treated as ‘family’ if they want to live with their partner in the EU – this right is likely to go after Brexit (Directive 2004/38/EC)