As the consultation period on proposed reforms to the Human Rights Act (HRA) draws to a close, Mermaids’ policy team reflects on the history of the Act and how it has advanced LGBTQIA+ rights in the UK, and looks at how the Government’s plans will restrict protections currently afforded to us all.
What is the Human Rights Act (1998)?
The HRA, passed in 1998, incorporated into domestic UK law the fundamental rights and freedoms set out in the European Convention of Human Rights (ECHR), which everyone in the UK is entitled to.
More specifically, the HRA lets you defend those rights in UK courts and compels public organisations – including the Government, local councils, hospitals and the police – to treat everyone in accordance with those rights.
Some of the most notable rights in protecting LGBTQIA+ rights are Article 8, the right to respect for private and family life, and Article 14, the prohibition of discrimination.
Article 8 in particular encompasses matters of autonomy and self-determination which may include the freedom to choose your own sexual/gender identity, your own personal relationships and the freedom to choose how you look and dress.
Article 14 protects people from discrimination when exercising their other Convention rights.
Why are we talking about this now?
However, many human right organisations, such as Liberty and Amnesty International have condemned these proposals for “reform” from the Government as the latest move which threatens to “fatally weaken our rights and protections and put Government beyond accountability” (Liberty, Dec 2021).
Mermaids and other LGBTQIA+ organisations are deeply concerned about the Government’s proposals, which could erode our rights to privacy, and diminish public bodies’ obligations to proactively protect our rights.
What are our concerns?
The Government published a public consultation on the Reform of the Human Rights Act in December 2021, which includes a list of proposals on how this reform will look. The key proposals we are concerned with are:
- The Government’s proposal to give the right of freedom of expression (section 10) enhanced protection may act to weaken the right to privacy (Article 8), which would stand to impact LGBTQIA+ people who have relied upon these rights to resist being outed.
- The Government wishes to curtail “positive obligations”, an important human rights mechanism which requires public bodies to take proactive steps to protect people’s human rights in everyday life. Undermining positive obligations is likely to have a detrimental impact on the LGBTQIA+ community, many of whom rely on the protections when such obligations are enforced when accessing public services.
The HRA’s pivotal role in advancing trans rights
The ability to change one’s legal gender in the UK was won through protections provided by the HRA, protections this reform seeks to weaken in Goodwin v UK (2002).
The claimant in this case, Christine Goodwin, a trans woman, appealed to the European Court of Human Rights (ECtHR) claiming her right to a private life and right to marry had been violated as despite living and working as a woman, in the eyes of UK law at that time, Christine was still considered a man. Significantly, the law prevented her from marrying a man.
The ECtHR ruled that Christine’s right to respect for private and family life (Article 8) and right to live free from discrimination (Article 14) were not being respected in the UK. This importantly led to the introduction of the Gender Recognition Act (2004), which was at the time of its enactment considered world-leading in respect of legal gender recognition and enabled trans people to access legal gender recognition in the UK.
Additionally, positive obligations imposed on public bodies by the HRA have a long history of protecting LGBTQIA+ people both in their everyday interactions with public bodies but also in the courts.
In Identoba and others v Georgia (2015), positive obligations helped protect LGBTQIA+ people’s Article 11 right (freedom of assembly and association) when the ECtHR decided that a lack of police protection during a peaceful march to mark the International Day Against Homophobia constituted a breach of their rights.
Marginalised communities are most at risk
Migrant and refugee communities, Black and communities of colour and prison communities, some of whom will also be LGBTQIA+, will be further disadvantaged by the proposals.
For example, migrant and refugee communities who have also relied heavily on their Article 8 right, have seen their rights to respect and dignity being curtailed by the proposed Nationality and Borders Bill – by requiring LGBTQIA+ refugees to “prove”, to a higher standard than previously, that their sexual orientation and/or gender identity could cause them fear of persecution – to the satisfaction of the Home Office and to judges (Clause 31). As we write, this Bill is making its way through Parliament.
What can I do?
We have been working on a response to the consultation with the LGBTQIA+ sector, which you can read here.
You can have your say, too. The deadline to respond to the consultation is Tuesday 8 March 2022 – so there’s still time to make your voice heard. You can respond via an online survey or by emailing a written response.
For guidance on how to respond to the consultation:
What happens next?
Once the consultation period has ended, we await the Government’s response to that consultation (which should usually be published within 12 weeks of the consultation closing) and then wait to hear their plans for a draft “Bill of Rights’.
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