In 2002, Christine Goodwin took the British government to one of the highest courts in Europe and in the process forced the UK to legally recognise its trans citizens.
Goodwin, a trans woman and activist, argued at the European Court of Human Rights that not being able to change the gender on her birth certificate was in breach of her human rights, impacting both her right to privacy and ability to draw a state pension. In what would become a milestone for trans rights, she won. The court ruled that the UK’s failure to recognise Goodwin’s gender identity in law was a breach of the European Convention on Human Rights (ECHR). Two years later, the Gender Recognition Act (GRA) was passed in the UK, a law that allows trans people to apply to have their birth certificates reissued.
Nearly 20 years on from Goodwin’s landmark case, Britain is a very different place. No longer part of the European Union, many LGBTQ activists warn that the break with the European Court of Justice (ECJ) jeopardises legislation that protects trans people in Britain. And with transphobia increasingly common in both the British media and wider society, others fear that Brexit will embolden the Conservatives to repeal human rights legislation, as the party weaponises trans rights in an attempt to be seen as standing up for “British values”.
Post-Brexit, Britain remains a member of the Council of Europe, the organisation of European countries that adhere to the ECHR. However it has been a longstanding Tory policy to repeal or replace the Human Rights Act (HRA), which incorporates the ECHR into British law. Their 2019 manifesto omitted previous pledges to “scrap” the HRA and ministers have stated a commitment to the ECHR, but both Brexit and the recent anti-trans cultural shift represents a period of uncertainty for equality law in Britain.
Even before Britain left the EU, the Conservatives did little to reassure supporters of human rights and equality legislation, nor the GRA. In 2015, then Prime Minister David Cameron proposed a “British Bill of Rights” to replace the HRA. The goal was to “break formal link” between Britain’s supreme court and the European Court of Human Rights, and deter cases in which British law contradicts the ECHR – the international human rights treaty that won Goodwin her case. Two years later, then Prime Minister Theresa May announced plans to reform the GRA, resulting in a media frenzy over the trans “debate”. Between 2014 and 2019, IPSO identified a 400 percent increase in reporting on trans issues, with “perceptions amongst some of increased hostility towards transgender individuals”. The Tories have since been accused of stoking a “culture war” over issues such as gender-neutral bathrooms as a way to win voters in swing seats.
More recently, Women and Equalities Minister Liz Truss announced an overhaul of the government’s equality policy to be led by “facts, not by fashion”. Taking direct aim at the Equality Act, she claimed that its focus on protected characteristics “has led to a narrowing of the equality debate that overlooks socio-economic status and geographic inequality”.
LGBTQ activist Edan Ladley is concerned about the future of the HRA. “It’s unlikely that the UK will leave the Council of Europe,” she says. “But repealing the Human Rights Act would make it much more difficult for trans people to address breaches of their rights. Many Conservatives have wanted to weaken it since it passed.”
While in urgent need of reform, the GRA had a huge impact on trans people in Britain. Theresa Davis was fired from her job at a university in 1991 when she came out as a trans woman (she was later reinstated). The GRA defines an individual’s gender identity as protected information, making a dismissal like the one Davis suffered illegal. Today, Davis fears that the break with Europe will eventually leave trans people with no recourse to challenge the UK legal system on human rights, although as a member of the Council of Europe, Britain is still party to the ECHR.
“I am worried that the ECHR will be phased out,” she tells me via email. “Strasbourg [the European Court of Human Rights] has upheld many judgments in favour of trans rights. To lose the ability to take action against the UK government would be a tragic loss.”
However the break with Europe represents a more immediate threat to another key piece of equality legislation.
Activist Christine Burns campaigned for the GRA in the group Press for Change. “We had spent 12 years laying the ground towards a GRA,” she says. “The circumstances [back then] were so different. We were a tiny, barely solvent group of volunteers, constantly on the verge of burnout.” Having left the EU, the UK is no longer bound to the ECJ, which Burns says jeopardises the Equality Act – a 2010 law that prohibits discrimination against people with protected characteristics, including gender reassignment.
“EU checks and balances, especially the Equal Treatment Directive, kept Britain on the straight and narrow when we pursued our rights,” says Burns. The Equal Treatment Directive is an EU law concerning equal treatment between men and women, and is mirrored by the Equality Act. “[They’re] burning what they see as red tape. We’re in the Wild West now.”
Teddy Hope, a PhD researcher in trans representation, echoes this fear. “The end goal [of anti-trans activism] is morally mandating trans people out of public life, such as using toilets, rape crisis centres and so on,” they claim.
What’s more, the Equality Act is not afforded much protection within UK law. “We do not have a constitutionally protected right to equality in the UK,” says Dr. Elaine Dewhurst of the University of Manchester, who specialises in European Union and anti-discrimination law. “Equality protections could be significantly reduced. The only recourse would be to seek protection under the ECHR [at the Strasbourg Court].”
But seeking that recourse would not be simple, Dewhurst explains: “The UK has not signed up to a free-standing right to equality and therefore, in order to claim discrimination, individuals must also demonstrate an interference with some other right under the Convention, such as a right to family and private life.” Finding this “interference” was how Goodwin argued for the right to change her legal gender in 2002.
When contacted by VICE World News for updates on reform to the Equality Act, a spokesperson for the Government Equalities Office said that the government had launched a new “data project” to pinpoint the barriers to equality in society, but did not provide further information about when this would launch or what form it would take. It seems the future of the Equality Act and as a result, protections for trans people in the UK, is uncertain.
“Uncertainty is probably the phrase most commonly used when [discussing] the future of the Equality Act,” says Dr. Dewhurst. “Equality law in the UK is intimately connected with EU law and naturally, a break poses substantial risks to our existing equality law protections.” Dr. Dewhurst does give one reason to be hopeful, though. The Brexit deal contains a commitment from the UK to respect the rights set out in the ECHR and a violation “could potentially suspend security cooperation in law enforcement and judicial cooperation between the UK and the EU”.
For many LGBTQ activists, what Brexit has shown above all is how fragile human rights protections are in the UK, and the devastating impact this could have on already vulnerable groups such as trans people.
“We are at the mercy of governmental policy with respect to equality law,” says Dr. Dewhurst. “We really do need a more overarching human rights protection in the UK.”