Photo by Katie Rainbow on Unsplash
By Lee Marsons, Essex Law School
The ECHR has been instrumental over the past few decades in terms of moving the dial forward for LGBTQ+ rights in the UK
Rishi Sunak, the British Prime Minister, is said to be actively considering withdrawing the UK from the European Convention on Human Rights (ECHR).
This would be a very bad decision. The ECHR is an international treaty that most European countries signed after the tragedies of the second world war, committing them to protect fundamental human rights. It is separate from the European Union.
The UK’s membership of the ECHR has played an important role in increasing the protection afforded to LGBTQ+ people over many years. There are three legal cases in particular that demonstrate how the ECHR has prompted Parliament and the government to respect the rights of LGBTQ+ people. LGBTQ+ people should reject calls to withdraw from the ECHR and raise awareness of the good that this treaty has done.
Homosexuality and the army: Until 2000, the UK Ministry of Defence had a blanket ban on gay men and lesbian women serving in the army. This was based on the prejudice that homosexuality was “incompatible with service in the Armed Forces”.
When the case was heard by an English court in Smith v Ministry of Defence, the judges concluded that the ban was lawful. By contrast, when the case was heard in the Strasbourg Court – the international court that interprets the ECHR – the judges concluded that the ban was a violation of the UK’s obligation to respect the private life of gay men and lesbian women and found it unlawful.
Though controversial at the time, the Strasbourg Court’s opinion is now wholly mainstream, with the Ministry of Defence issuing an apology in 2007, and the current government establishing an “LGBT Veterans Independent Review” in 2022 to explore the effects of the ban on LGBTQ+ veterans.
Transgender recognition: Until 2004, UK law did not allow trans people – including those who had had surgery – to live as their true gender for legal purposes. A trans woman could not, for example, marry as a woman and would be registered as a man for all legal purposes, such as employment and social security.
In 2002, in Goodwin v United Kingdom, the Strasbourg Court concluded that this was a disproportionate interference with trans people’s right to respect for their private life. This case did not consider exactly when legal recognition should be possible – such as through self-identification – but it did decide that the failure to provide any legal recognition, including for post-operative trans people, was unlawful.
This case was a major factor in the trend towards legal recognition of trans people.
In 2003, the British courts in Bellinger v Bellinger concluded that UK law should be brought into line with the Strasbourg Court’s decision and, through the Gender Recognition Act 2004, it eventually was.
Decriminalising gay sex: While homosexual sex was decriminalised in England, Wales, and Scotland in 1967, consensual homosexual sex remained a criminal offence for which men could be imprisoned in Northern Ireland until 1982.
This was reversed only after a Strasbourg Court case called Dudgeon v United Kingdom, which found that the criminalisation of consensual homosexual sex was a disproportionate interference with the private lives of gay men. After this case, ministers changed the law of Northern Ireland so that gay men could have sex without being imprisoned.
LGBTQ+ History Month is a good time to reflect on how we have succeeded in moving closer to equality for everyone in the UK over many years. Naturally, there are no simple answers.
The effective promotion of LGBT rights has involved a network of political, social, legislative, judicial, domestic, and international action.
The ECHR will never be the only answer, but it has been and remains part of the answer and the government is wrong to contemplate withdrawal. LGBTQ+ people in the UK should reject calls to withdraw from this important treaty.
This piece was first published on Openly and is reproduced on the ELR Blog with permission and thanks.
The piece was also cited on the floor of the House of Commons by Alison Thewliss MP here.