Friday, 24 June 2016

UK EU Referendum outcome is a sad day for LGBT people in Europe

The Secretary General of the Council of Europe, Thorbjørn Jagland, has issued the following statement on the outcome of the UK EU Referendum:
The democratic decision in this referendum must be respected. The best way forward now is for the EU, in accordance with its best traditions, to work together with the UK government to obtain the most acceptable outcome for the citizens of the UK and Europe. Everybody should now focus on what unites our family of European nations; democracy, human rights and the rule of law.
Of course, the UK's membership of the Council of Europe, and its acceptance of the jurisdiction of the European Court of Human Rights, are unaffected by the outcome of the Referendum. However, the outcome of the Referendum will have an impact on human rights and, specifically, on the human rights of LGBT people. This impact will be felt in the UK, the EU, and the wider Council of Europe for a number of reasons:
  • First, LGBT people in the UK will lose access to a source of law that has enhanced their rights and protections. For example, until EU law required it, people in the UK had no protection in employment from discrimination on the grounds of sexual orientation. Attempts by some UK legislators to enact law that provided such protection had failed in 1983, 1995 and 1998. Protecting people from sexual orientation discrimination at work had been opposed on the grounds that, for example, it is for ‘those who are gay or of a different sexual orientation ... to take care that they do not ostensibly, willingly and arbitrarily offend those with whom they work’ (Lord Arran, House of Lords, 5 June 1998, c.645) or because such protections would cause ‘great concern to some Christian and other religious charities which do not believe that homosexuality is compatible with Christian or other faith beliefs’ (Bishop of Wakefield, House of Lords, 5 June 1998, c.649). It was only because of the requirement to comply with Council Directive 2000/78/EC of the European Union, that the UK Parliament finally enacted the Employment Equality (Sexual Orientation) Regulations 2003 (now the Equality Act 2010, in Great Britain) and provided people with protection from basic harms such as being refused employment or being sacked because they are gay. 
  • Secondly, through its membership of the EU, the UK has helped to shape EU human rights law in ways that have enhanced the human rights of LGBT people in the UK and the other EU member states. For example, the UK was part of negotiating the text of Article 9 of the Charter of Fundamental Rights of the European Union which omits any requirement regarding the sex of the parties who have the right to marry. This leaves open the possibility for (and, one might say, encourages) EU States to permit same-sex marriage. The UK's membership of the EU therefore helped to raise the EU-wide standard of human rights law by encouraging the rejection of the idea that the right to marry should be explicitly limited to men and women. 
  • Thirdly, the UK's participation in the EU human rights arena has had an impact in the wider Council of Europe and the European Court of Human Rights. It was, for example, the existence of the aforementioned Article 9 of the EU Charter that persuaded the European Court of Human Rights in Schalk and Kopf v Austria that it 'would no longer consider that the right to marry enshrined in Article 12 [of the European Convention on Human Rights] must in all circumstances be limited to marriage between two persons of the opposite sex' (§ 61).
In my opinion, one of the greatest untruths told by the 'leave' side of the UK EU Referendum campaign was that by leaving the EU people in the UK would 'take back control'. That is untrue in respect of LGBT people because, instead of taking back control, we have lost access to one the world's most powerful mechanisms for protecting our human rights and, just as importantly, to being able to contribute to the protection of the human rights of those in other states.

This truly is a sad day for European LGBT people and our human rights.

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