Will the rights of transgender asylum seekers in the UK be protected post-Brexit?

Will the rights of transgender asylum seekers in the UK be protected post-Brexit?

The media has become oversaturated with speculation on the potentially devastating consequences that a no deal Brexit could have for businesses, trade and the UK economy as a whole, but there has been a worrying lack of coverage on the wider implications of the UK crashing out of the EU on 31st October when it comes to the issue of securing fundamental human rights in a post-Brexit Britain.

Minority groups in the UK are facing just as much fear and uncertainty as businesses when speculating about what life in the UK will entail if the government chooses to sever all ties with their European neighbours. The LGBTQ+ community, whose rights are currently protected by EU law, are among those who understandably have grave concerns about what the future holds. How will Brexit affect the LGBTQ+ community and more specifically, how could it impact transgender asylum seekers who hope to escape persecution in their own countries and who have pinned their hopes on seeking refuge in the UK?


Claiming asylum in the UK

In order to be eligible to claim asylum in the UK, individuals must have a “well-founded fear of persecution” or have already experienced persecution on the grounds of “race, religion, nationality or political opinion” or because they are members of a particular social group, and also be unable to gain protection in their own country. As recently as 10 years ago, being lesbian, gay, bisexual or transgender was not considered adequate grounds for claiming asylum in the UK, because, shockingly, it was deemed to be “reasonably tolerable” for such individuals to conceal this fundamental part of their true identity in order to avoid persecution. A welcome change in this stance came in 2010 in a landmark case at the Supreme Court, where the judge ruled that a person who faced persecution on the basis of sexual orientation or gender identity should have the right to seek refuge in the UK.

Whilst this legal shift was broadly welcomed, it has not succeeded in making the process of claiming asylum on the basis of gender identity any easier. Many transgender asylum seekers are trapped in the impossible situation of being forced to conceal their identity in their own country, due to fear for their life in some cases, making it difficult to present their case to the UK government as they are unable to supply the extensive evidence required to successfully claim asylum. With a lack of specialist support available for transgender asylum seekers in the UK, their plight remains as complex and difficult as ever.


Transgender rights and discrimination

As it stands, transgender people in the UK are protected by the 2010 Equality Act, which includes gender reassignment of one of its nine core ‘protected characteristics’, and by Article 21 of the EU Charter of Fundamental Rights. After Brexit, the UK will no longer be bound by European human rights laws, including the EU legislation that is currently in place to safeguard transgender people. In the event of an abrupt and definitive departure from the EU in October, it is as yet unclear what measures the UK government would put in place to safeguard the rights of transgender people in the UK, or how much of a priority this will be. The Equality Act, though beneficial, is both subject to amendments by parliament and hasn’t always historically been sufficient in protecting trans rights. It simply doesn’t have the robust assurance of the EU Charter.

This is particularly concerning when taking into account the rise in hate crime against the LGBTQ+ community in recent years. A 2017 report by Stonewall revealed that 14 percent of transgender people don’t feel safe in their local area, and 40 percent admit to altering the way they dress in order to avoid abuse or harassment. The report also documented the hostility transgender people are confronted with when accessing public services, with 29% stating that they have faced some form of discrimination, which is particularly prevalent amongst BAME (Black, Asian and Minority Ethnic) transgender individuals.

Given that the UK government is already failing to provide adequate support to transgender people, it seems unlikely that the Home Office would prioritise the rights of transgender asylum seekers post-Brexit. The newly appointed Home Secretary Priti Patel’s stance on human rights has already prompted ‘extreme concern’ and she has always been very staunch in her support of Theresa May’s ‘hostile environment’ policy in relation to asylum seekers.  Patel’s hard-line stance, combined with the post-Brexit removal of EU human rights laws from UK legislation, does not bode well for transgender asylum seekers who hope to gain refuge in the UK.

Rather than making life even more difficult for individuals who have been subjected to persecution and abuse based on their sexuality or gender identity, the government should be working much harder to prioritise and secure the rights of asylum seekers and the LGBTQ+ community in the UK.

Joanne Starkie is a writer and political correspondent for the Immigration Advice Service, an organisation of UK immigration solicitors providing legal support for those looking to migrate to the UK or hire overseas workers.