LGBT+ Rights

The right to be free from inhuman or degrading treatment may be at risk if someone is at risk of persecution because of their  sexual orientation

SC was a Jamaican national who moved to the UK with his mother. SC was straight but his mother was a lesbian and the family had been subjected to homophobic harassment and persecution in Jamaica. They were granted asylum in the UK but after SC was convicted of criminal offences, the Home Office said they were going to send him back to Jamaica. The Home Office recognised that he would be at risk of inhumane or degrading treatment in the cities of Jamaica but said he could move to the countryside to avoid this. However, the Supreme Court said this was not reasonable, partly because SC was suffering with a highly complex form of PTSD and would need long-term psychological treatment that he could not access in rural areas. The Court therefore said deporting SC would breach his Article 3 right to be free from inhuman or degrading treatment so he should be allowed to stay in the UK.

The right to private and family life may be at risk if someone’s work or home life is interfered with because of perceptions about their sexual orientation

In 1999, the Ministry of Defence had a policy of dismissing members of the armed forces for being gay. Jeanette Smith, a lesbian, and Graeme Grady, a gay man, were both discharged from the army after their sexualities were disclosed. The British Government acknowledged that this interfered with their Article 8 right to private life but said it was justified for the “maintenance of morale of service personnel and, consequently, of the…effectiveness of the armed forces”. However, the Court said the Government had not given “convincing and weighty” reasons and so the policy was a breach of human rights. The ban on gay people serving in the armed forces was lifted in 2000.

The right to marry and found a family may be at risk if a couple is unfairly prevented from marrying or there is no legal recognition of their marriage.

Mrs Bellinger was a trans woman who married a man in 1981. At the time, the Gender Recognition Act had not yet come into force and there was no legal recognition of same-sex marriage. The Matrimonial Causes Act 1973 at the time said a marriage is not valid if “the parties are not respectively male and female” The Court of Appeal treated Mrs and Mr Bellinger as two men and said their marriage wasn’t valid. Mrs Bellinger appealed to the House of Lords court (which was the highest court before the Supreme Court was created). The House of Lords court said the law at the time meant the marriage wasn’t valid but that this breached Mrs Bellinger’s Article 8 right to private life and the Article 12 right to marry. In 2004, the Gender Recognition Act was introduced which allowed people to change their legal sex.

The right to be free from discrimination may be at risk if someone is unfairly treated differently to opposite-sex couples in the same situation.

M and W were an unmarried same-sex couple. M underwent in vitro fertilisation treatment (IVF) to have a baby with donor sperm. Both M and W intended to be the parents of the baby and signed documents consenting to this. When M and W first visited the IVF clinic (and signed the documents), there was no law in place that said a woman would automatically be considered the legal parent of a child that her partner gives birth to. However, by the time M underwent the embryo transfer, the Human Fertilisation and Embryology Act 2008 had taken effect. This meant that women would be the legal parents of the children their partners gave birth to provided they had given consent on particular forms.

M and W tried to register W as the baby’s parent but were told they could not do so without getting the consent forms specified in the 2008 Act. They didn’t do so. M and W later separated and M applied for child maintenance payments from W. However, W said she wasn’t a parent. M asked the court to confirm that W was a parent because they had given consent at the time of treatment. While they hadn’t used the forms specified in the 2008 Act, the court acknowledged that it had already been established that male partners who had given written consent this way before the 2008 Act came into force met the requirements to be the legal parent. It would therefore have been a discriminatory breach of their Article 8 right to private life to treat female partners differently. The court therefore confirmed that W was a parent.

The right to education may be at risk if schools don’t respect different viewpoints without good reason.

In December 2022, a group of parents brought a claim against the Welsh Government, saying that introducing Relationships and Sexuality Education as a mandatory part of the school curriculum breached the right to education because it did not consider their religious and philosophical convictions. However, the Court said while teaching should be religiously neutral, it doesn’t have to be value neutral and teaching tolerance and critical thinking is in line with the purposes of the right to education. The parents asked to appeal the decision, but the Court of Appeal refused, saying “it is inconceivable that such teaching [about respectful treatment of LGBTQ+ people] could be contrary to the common law or the Human Rights Act”.