The most basic of trans rights stem from the European Convention on Human Rights, created by the Council of Europe in 1950 and strongly supported at the time by Winston Churchill.
This sets out the fundamental rights to which every individual living in the UK (or in any of the other 46 countries who are signatories to the Convention) is entitled. In theory, rights are “inalienable”. That means they cannot be removed from an individual irrespective of what they may have done. In some specific circumstances, an individual may have their liberty restricted where their actions have broken the law of the country in which they live (so long as that law is, itself, compliant with the ECHR).
The UK was one of the first signatories of the ECHR which ultimately is governed by the European Court of human Rights. However, it did not incorporate the Convention directly into UK Law, with the result that for almost 50 years, anyone wishing to claim rights under the HRA had to exhaust all measures in UK courts before applying to the European Court of Human Rights in Strasbourg.
This was a laborious process. Individuals were required to have exhausted all UK legal mechanisms before heading off to participate in legal proceedings in unfamiliar surroundings. In addition, such escalation was expensive, with the result that many Human Rights failings went unaddressed.
All changed with passing of the Human Rights Act 1998, which incorporated the Convention into UK Law.
This made no real difference to the rights of trans people in the UK: but it did make access to Human Rights remedies that much easier.
Nowadays, Human Rights issues may be raised at any stage within proceedings, from the lowest court all the way up to the Supreme Court. Although only the Appeal Court or higher can over-ride laws passed by parliament. In addition, whenever Parliament passes new laws, it is required to ensure that such laws are also compliant with the HRA.
For technical legal reasons, the UK HRA is closely aligned to the European declaration, but does not exactly mirror it.
Despite frequent media confusion, neither the ECHR nor the ECtHR are EU bodies.
The HRA in practice
The HRA covers off:
Article 2: Right to life
Article 3: Freedom from torture and inhuman or degrading treatment
Article 4: Freedom from slavery and forced labour
Article 5: Right to liberty and security
Article 6: Right to a fair trial
Article 7: No punishment without law
Article 8: Respect for your private and family life, home and correspondence
Article 9: Freedom of thought, belief and religion
Article 10: Freedom of expression
Article 11: Freedom of assembly and association
Article 12: Right to marry and start a family
Article 14: Protection from discrimination in respect of these rights and freedoms
Protocol 1, Article 1: Right to peaceful enjoyment of your property
Protocol 1, Article 2: Right to education
Protocol 1, Article 3: Right to participate in free elections
Protocol 13, Article 1: Abolition of the death penalty
Trans people enjoy all of these rights by virtue of living in the UK. In practice, certain provisions have been invoked more frequently in respect of Trans Rights . Specifically, Article 8: Respect for private and family life and Article 12: the right to marry and start a family.
EU Fundamental Rights
In addition to the HRA, UK citizens are also protected by the Charter of Fundamental Rights of the European Union (the Charter). This is an attempt to harmonise the fundamental rights of everyone living in the European Union (EU), by providing consistency and clarity to rights established at different times and in different ways in individual EU Member States.
The Charter sets out the full range of civil, political, economic and social rights based on:
- the European Convention on Human Rights (see above)
- the constitutional traditions of the EU Member States. In respect of the UK this would include protections of rights which currently exist in common and constitutional law
- the Council of Europe’s Social Charter
- the Community Charter of Fundamental Social Rights of Workers, and
- other international conventions to which the EU or its Member States are parties.
The Charter and ECHR are frequently confused by the media. In fact, the Charter is part of the overall EU law, of which the ECHR forms just one part: it is interpreted separately from the ECHR by the Court of Justice of the European Union (CJEU)
The Charter became legally binding on EU Member States when the Treaty of Lisbon entered into force in December 2009. Its precise status after the UK leaves the EU is just one part of the discussion to be had after following Brexit.
That is, the UK is likely to remain bound by the Charter for the duration of any transition period: depending on the outcome of negotiations as well as domestic political considerations, it may decide to maintain some alignment between UK law and the Charter for some time after.
A number of advances made by the trans community have come about after the UK Government was found to have been in breach of Human Rights Law in respect of how they treated trans people
Areas where trans protection under the law has been significantly amended by cases addressing such issues include:
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