Gina Miller: Brexit could erode LGBT+ rights in the UK

Photo of Gina Miller, Brexit campaigner.

Gina Miller is a business entrepreneur and activist who co-founded the Lead Not Leave campaign ahead of Britain’s departure from the European Union. Here, Miller explains why Brexit could be detrimental to LGBT+ rights.

Whether you agree with him or disagree, Owen Jones, the Guardian columnist, has as much right as anyone to make his voice heard. I found it chilling to see footage he had taken himself on his mobile phone being shrieked at by demonstrators at College Green, opposite the Palace of Westminster — and subsequently at a protest in central London — on no other grounds than he happens to be gay.

I know how horrible it feels to see hatred in the raw, having myself had to contend with a grisly chorus chanting “gas Gina Miller” as I endeavoured to give an interview on the Green just before Christmas to the BBC’s Huw Edwards. The issue for a lot of these angry men was the colour of my skin, just as for Owen it was his sexuality, and there is only one word for is that – and it is prejudice.

It would be great to be able to say that the LGBT+ community — which has shown such resolve and sense of common purpose on so many issues — is united on the issue of Brexit, but, in common with just about every other community, it, too, is divided.

I don’t seek in this article to imply that anyone is wrong about Brexit— if there is one thing anyone who has experienced abuse tends to believe in, it is, believe me, freedom of expression — but what does alarm me is very real potential for the erosion of a great many hard-won rights for the LGBT+ community as an unintended consequence of Brexit.

It worries me, too, with statistics showing that homophobic attacks rose 147 percent in the three months after the Brexit vote, that it is taking us back to a time when hatred of just about all minorities is once again being normalised. At least one newspaper that was, in a less enlightened time known for its homophobia, reverted to type when my case against the government over Article 50 went to the Supreme Court.  It was totally unacceptable that they felt it necessary to point out that one of the judges who ruled in my favour was gay.

The government insists that it will continue to champion LGBT+ rights after the UK leaves the EU, but the government’s plan in the EU (Withdrawal) Bill to exclude the EU Charter of Fundamental Rights does not live up to its promise that Brexit should not lead to a reduction in rights. The inconvenient truth is the EU Charter of Fundamental Rights is the only treaty binding on the UK that expressly protects against discrimination on the basis of sexual orientation.

But there are other concerns which arise from the loss of the Charter:

Less power to protect rights

The Charter provides powerful mechanisms for protecting rights over and above those available elsewhere in UK law — for example remedies for claims of discrimination at work.

Less flexibility to create new rights and reflect change

The Charter is what is called a ‘living instrument’, meaning that it is not static and the rights it provides must reflect social change and be interpreted in the light of contemporary conditions.

Theresa May and EU Flags

Theresa May with the EU flag. (AURORE BELOT/AFP/Getty Images)

Creating gaps in basic human rights

Losing the Charter would create significant gaps in substantive rights, because it includes rights that do not have direct equivalents in UK human rights law. For example, it includes a free-standing right to non-discrimination, protection of a child’s best interests and the right to human dignity.

Losing the Charter principles

For example, the case upholding restrictions on tobacco labelling relied on the Charter principle of a ‘high level of human health protection’.

Legal uncertainty and confusion

Scrapping the Charter will create legal uncertainty and confusion which is a recipe for costly and time-consuming litigation as the courts seek to establish certainty about how far the rights in the Charter continue to apply after Brexit.

Of course, all these problems can be solved by keeping the Charter protections in UK law.

The fact is the EU rather than the UK has led the way on equal rights for the LGBT+ community over the last three decades. It was, to take just a few examples, thanks to the European Court of Human Rights that gay sex was decriminalised in Northern Ireland in 1982.  In 2000, it was the European Court of Human Rights that ended the ban on lesbians and gay men serving in the military. In 2011 the EU law played a vital role in defending rights after the coalition government considered scrapping the 2010 Equality Act through its ‘Red Tape Challenge’.

Granted, the UK Equality Act 2010 provides comprehensive protections that expressly outlaw “discrimination and harassment related to certain personal characteristics” — with sexual orientation a “protected characteristic” — and 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.

“David Cameron likes to boast he was instrumental in pushing for gay marriage … the fact is several EU countries were well ahead of the UK even on this front.”

— Gina Miller

But the fact is the ECJ created the foundations on which equality and anti-discrimination safeguards could be built. It also created a mechanism for appeal that a great many LGBT+ people could count on when all else has failed — and the EU has been there for gay people long before the British government.

David Cameron likes to boast, of course, that he was instrumental in pushing for gay marriage — which always irks the Lib Dem peer Lynne Featherstone who was its real driver.  But the fact is several EU countries were well ahead of the UK even on this front. The Netherlands, Belgium, Spain, Norway, Sweden, Iceland and France all accorded gay men and women this right before the UK, and it was this that gave campaigners the leverage to push the UK to do right by them.

I don’t believe that Mrs May herself is a homophobe — she had no time during the last election for Tim Farron’s primitive views on homosexuality itself — but I have not cared for the voting records of a lot of the most prominent Brextremists on gay rights, nor the language of their activist wing on College Green.

I have friends in the LGBT+ community who tell me there is nothing to worry about because the rights they have can never be reversed. I wish I could be so sure. The fact is, outside of Europe, future British governments will have unconstrained freedom in areas currently governed by EU law relevant to LGBT+ rights and employment, enabling them to scrap the protections whenever they see fit.

History certainly doesn’t encourage any sense of complacency.  In the Twenties, Germany was one of the best places for LGBT+ people, but, only a short while later, things had taken a dramatic turn for the worse for anyone who was LGBT+, in addition of course to those who were disabled, European Roma or 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 the rights American gay men and women have long taken for granted in this the 50th anniversary of Stonewall.

No matter how anyone in the LGBT+ community voted in the EU referendum, I would now say only this: be vigilant.

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The views expressed in this article are those of the author and do not necessarily reflect the views of PinkNews, its board members or staff.