LGBT Legislation

Because homosexuality in particular has a long history of persecution by the state, there is a lot of legislation effecting LGBT rights. What follows here is a short summary of the legislation and primary court judgments in the UK. Prior to 1999 the aim of most of the legislation was to restrict the rights of LGBT people and impose often very severe penalties.  Since 1999 the trend has been reversed with most LGBT legislation designed to remove penalties and confer equal rights. Unfortunately this has led to considerable conflict with religious organisations, a conflict that still continues.  Almost all LGBT legislation put in place since 1999, has also been as a direct result of decisions from the European Court of Justice, the European Court of Human Rights or the European Commission.

Buggery Act 1533

This was the first act of parliament in the UK to make the act of Sodomy (anal sex) a criminal offense punishable by hanging. Sodomy had been increasing the focus of European law and was a prime target of the Spanish Inquisition, however there is evidence of a more specific ulterior motive for Henry VIII in introducing this law. It coincided with the annulment of his marriage to Catherine of Aragon and the beginning of the separation of the Church Of England from the Roman Catholic Church. The Act specifically gave powers to the King to execute clerics and confiscate their lands and possessions, which it is believed was the primary purpose of the Act.

Unsurprisingly in 1553 Queen Mary, daughter of Catherine of Aragon ascended to the throne and repealed this and other anti catholic laws. However when she died without an heir, she was succeeded by Queen Elizabeth I who reinstated the Act in 1563.

Offenses Against the Person Act 1828

This Act repealed the Buggery Act 1533, but retained the offense of sodomy as a capital offense. The last two Englishmen hanged for sodomy were John Pratt and John Smith executed in front of the Newgate Prison in London on the 27th of November 1835. The last execution for sodomy took place in 1836.

Offenses Against the Person Act 1881

This Act wholly replaced the 1828 act and removed the death penalty or buggery replacing it with a sentence of penal servitude for life or any tern not less than 10 years – the minimum sentence was repealed through the penal servitude act 1891.

Criminal Law Amendment Act 1885

Commonly known as the Labouchere Amendment, this last minute addition to the Act made gross indecency a crime punishable by two years imprisonment and it was under this amendment that both Oscar Wilde and Alan Turing were tried and convicted. The full text of the amendment was:

Any male person who, in public or private, commits, or is a party to the commission of, or procures, or attempts to procure the commission by any male person of, any act of gross indecency shall be guilty of a misdemeanour, and being convicted shall be liable at the discretion of the Court to be imprisoned for any term not exceeding two years, with or without hard labour.

 What constituted Gross Indecency was never made clear but the act was used broadly to prosecute men suspected of homosexuality where actual sodomy could not be proved. The definition was so vague that this act was dubbed the “Blackmailers Charter.”

Sexual Offenses Act 1967

Receiving Royal Assent on 28th July 1967, this important Act decriminalised homosexual acts after more than 400 years. However according to Peter Tatchell it resulted initially in an increase in convictions for homosexuality. This was because the Act made sex between consenting adult men over the age of 21 legal “in private.” The Courts chose to interpret this very strictly, meaning that there must be no one else in the building. This meant that two men taking a room in a hotel were often reported, and subsequently raided and arrested.

Since, prior to this Act, transsexual women were treated legally as male, even if they were living and presenting as female and had undergone gender reassignment surgery, many had been convicted of homosexuality.

Corbett v Corbett 1970

In 1970, April Ashley’s divorce made matters worse. Until then, post-surgery trans women had been able to change their birth certificates unofficially, to reflect their acquired gender. However, in the court case annulling her marriage to Arthur Corbett (Corbett v Corbett ), Justice Ormrod determined that trans people could not ever change sex, and therefore even after full gender reassignment, trans people remained legally in their birth gender. This made them unable to marry, and inhumanely treated in all legal matters, including imprisonment.

Local Government Act 1988 (Section 28)

This highly controversial amendment to the Local Government Act which stated that a Local Authority

“shall not intentionally promote homosexuality or publish material with the intention of promoting homosexuality” or “promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship”.

While no-one was ever prosecuted under the act it effectively prevented schools from properly educating pupils and prevented local authorities from supporting LGBT communities.

P v S & Cornwall CC (1994) ECJ, Case C13/94

This judgement in the European Court of Justice prohibited workplace and vocational training discrimination, including voluntary work, against trans people who are ‘intending to undergo, are undergoing or have undergone gender reassignment’ . This judgement meant that all UK courts had to comply with the ruling and resulted in legislation to include trans people in the Sex Discrimination Act and largely to restrict the effect of the European judgement.

Criminal Justice and Public Order Act 1994

The age of consent of 21 for homosexual males set by the 1967 Act was reduced to 18 by this act despite an attempt by Conservative MP Edwina Currie get an amendment passed to equalise the age of consent with that of the heterosexual age of consent of 16. This act also extended the definition of rape to include penetration of the anus creating the offense of male rape.

Human Rights Act 1998

Whilst most of the legislation providing legal protection to people on the grounds of sexual orientation or gender reassignment has been the direct result of a European Decision – the cost and time of taking a case to the European Court of Human Rights makes this unrealistic as a remedy for most people. The Human Rights Act makes it possible for a UK court to rule on a breach of the European Convention on Human Rights without the need to go to Strasbourg.

It also makes it illegal for any public body to act in a manner that is incompatible with the European Convention unless an Act of Parliament means they have no other choice. Courts must consider decisions made in Strasbourg in their UK rulings but cannot override parliament, instead they can issue a declaration of incompatibility. Any individual can still take their case to the European Court of Human Rights as a last resort.

Sex Discrimination (Gender Reassignment) Regulations 1999

In respect of employment and training, the provisions of the Sex Discrimination Act 1975 were extended to include trans people, provided they were intending to undergo, undergoing or had undergone a medically supervised process of gender reassignment. The act brought in a number of exemptions such as personal searches and religious organisations. Some of those exemptions have now been overruled, though others still exist – especially for religious organisations, who are still able to discriminate.

Goodwin v. UK and I v UK (2002)

The European Court of Human Rights held that the UK government’s failure to alter the birth certificates of transsexual people or to allow them to marry in their new gender role was a breach of the European Convention on Human Rights. This led directly to new legislation to once again clarify and restrict the extent of the judgement.

Sexual Offenses (Amendment) Act 2000

Following several failed attempts the government invoked the Parliament Acts 1911 and 1949 to defeat opposition in the House of Lords and equalise that age of consent at 16 for both homosexual and heterosexual behaviours throughout the UK.

The Employment Equality (sexual orientation) Regulations 2003

These regulations implemented within the United Kingdom the provisions of the EU Equal Treatment Directive making it illegal to discriminate on the grounds sexual orientation in respect of employment, vocational training, professional organisations and trade unions.

Local Government Act 2003

This finally repealed the controversial Section 28 of the Local Government Act 1988 after a number of failed attempts. Section 28 had galvanised the Gay Rights movement in the UK and it is likely that many LGBT people were inspired to “come out” and campaign against this hugely discriminatory legislation. Released from the constrictions of Section 28, local authorities have subsequently embraced and supported the LGBT community although sadly schools have been much slower to respond. Many schools stills are reluctant to positively promote LGBT issues and have allowed the negative use of terms like “OMG that is so Gay” to become commonplace. Many Conservative supporters of Section 28 have subsequently admitted that the legislation was wrong.

Sexual Offenses Act 2003

This Act deleted from statutory law the offenses of gross indecency and buggery and made sexual activity between more than two men no longer a crime in the United Kingdom. At the same time the definition of rape was further extended to include penetration of the mouth. Following this act the Home Office announced that it would be removing people convicted of “Homosexual Offenses” that were no longer illegal from the sex offenders register, however there is still evidence that many of these gay men and trans women are still on the sex offenders register because they have to apply to be removed.

Gender Recognition Act 2004

Following extensive consultation and considerable objection from religious organisations, the Gender Recognition Act provided full legal recognition of a transperson’s new gender for ALL purposes, including marriage, new birth certificate, pension rights, social security benefits and privacy. In order to qualify for legal recognition, a trans person has to show that they have been diagnosed as having gender dysphoria and evidence that they have lived in their acquired gender role for a minimum of 2 years and that they intend to do so permanently for the remainder of their life. Their application must be supported by two medical practitioners, one of whom is a gender specialist and supported by a statutory declaration. It is not necessary for a trans person to have undergone any surgery or hormonal treatment, however the Gender Recognition Panel requires an explanation from the medical practitioners if that is the case.

Gender Recognition (Disclosure of Information) Order 2005

Despite parliament refusing to grant exemption from the Gender Recognition Act to religious organisations, shortly after the act was passed, this statutory instrument was introduced quietly. It essentially exempted churches from all penalties, therefore enabling them to refuse a trans person any involvement in religious activities.

Civil Partnership Act 2004

This allowed same sex couple to secure the same rights as those enjoyed by heterosexual couples in marriage.  This was an important piece of legislation for trans people because many trans women were already married to women and wished to remain married. However, in order to be recognised in their acquired gender, all trans people were required first divorce their partner and then enter into a civil partnership once their gender was legally recognised. This has now been changed by the Marriage (Same Sex Couples) Act 2013 which allows a married transperson to change their gender provided their partner agrees. If a trans person is in a civil partnership when when they transition then they will have to convert that civil partnership to a marriage before changing gender because partnerships are not permitted for opposite sex partners.

Equality Act 2006

The Equality Act 2006 is important in four particular ways.

Firstly, it set up the creation of the Equality and Human Rights Commission. Prior to this Act there were three separate commissions dealing with Race, Disability and Sex. The commission dealing with Sex and Gender was the Equal Opportunities Commission. All three have now been merged to become the EHRC and four additional diversity strands or protected grounds have been added – Sexual Orientation, Age, Religion and Faith and Gender Reassignment (although this is often considered part of the Sex strand)

Secondly, the Equalities Act introduced the Gender Equality Duty – which followed the format of the Race Equality and Disability Equality duties in requiring public sector organisations to take positive action to prevent discrimination.

Thirdly, it set out the framework for new legislation to prevent discrimination against lesbian and gay people in the delivery of goods and services.

Finally, the EHRC was also responsible for drafting the new Bill for the Equalities Act 2010

The Equality Act (Sexual Orientation) Regulations 2007

This made it illegal to discriminate against gay and lesbian people in the delivery of goods and services. For example, prior to this, a guest house or hotel could refuse to provide a room to two man because they were gay. The legislation met with considerable resistance during its passage through parliament and, notably, trans people were not included and so were not protected by this legislation. That said, a lot of trans people are often considered gay or lesbian at some stage in their lives, whether before or after transition.

European Directive 2004/113/EC December 2007 – (December 21st 2007)

One reason for trans people being excluded from the goods and services legislation related to sexual orientation was the prior existence of this European Directive, which required the UK government to extend the Sex Discrimination Act 1975 to include gender reassignment.

Sex Discrimination (Amendment of Legislation) Regulations 2008

This amendment provided protection for people who were planning to undergo, had undergone or were undergoing a medically supervised programme of Gender Reassignment, making it illegal to discriminate against them in the delivery of goods and services. The amendment was supposed to have been put in place by December 21st 2007 – but due to an objection by Ian Paisley, then First Secretary of Northern Ireland, it was not passed until April 2008 after Paisley had resigned. Once again comprehensive exemptions were provided on the grounds of religious belief.

Equality Act 2010

This was one of the Labour Governments flagship pieces of legislation comprehensively overhauling all previous equality and diversity legislation and as far as possible harmonising the treatment of the equality strands, now called Protected Characteristics. This act probably impacted trans people more than any other group partly because it introduced provision that applied to some protected characteristics but had not applied to Gender Reassignment, and also because of a small change in the definition which significantly broadened the reach of the legislation to include most trans people who were not undergoing a “medically supervised” process of gender reassignment.

Public Sector Equality Duty – April 2011

The Public Sector Equality Duty is crucially important for Trans people because it totally changed the way discrimination was treated within the Public sector for introduced in the Gender Equality Duty.  The duty replaced the three previous duties for Gender, Race and Disability and included all protected characteristics requiring public sector organisations to eliminate discrimination harassment and victimisation, advance equality of opportunity and foster good relations.

Marriage (Same Sex Couples) Act 2013

Despite considerable opposition from religious bodies, the UK embraced same sex marriage in 2013. Since then other regulations have been produced to enable same sex partners to convert their civil partnership to a marriage and for Trans people to apply for a gender recognition certificate to change their gender if they are married at the time of their application, provided their spouse agrees to the change.

 

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