Mar 2023 – LGBT+ rights at work: no room for complacency
This article considers the current position of LGBT+ people in the workplace and the challenges that still remain.
Protection from discrimination on the grounds of sexual orientation was first introduced in the UK in 2003, and on the grounds of gender reassignment in 2010. Lots has changed since then. It is 20 years since the repeal of “Section 28”, the law banning the “promotion of homosexuality” by local authorities, including teaching in schools. Today, many public figures are known to be lesbian, gay, bi, trans (known as being “out”), and same-sex couples are regularly depicted in the media. In 2021, Lesbian, gay, bi, trans and asexual people in England and Wales were counted for the first time in the Census.
Things are certainly better than they used to be. However, as demonstrated by the current media climate surrounding the LGBT+ community, in particular trans and non-binary people, there is still no room for complacency about LGBT+ rights, whether in the workplace or elsewhere.
The Retained EU Law Bill
First, some good news – it is currently unlikely that the UK’s departure from the EU will cause a reduction in LGBT+ rights at work.
This would not have been true 20 years ago. The original regulations banning sexual orientation discrimination were introduced because this was required by the EU’s Equal Treatment Framework Directive. Unlike with other forms of discrimination such as race and disability, where the UK was ahead of the EU in introducing anti-discrimination provisions, the sexual orientation regulations were only brought in because of EU law.
The UK’s departure from the EU has led to the Retained EU Law (Revocation and Reform) Bill (informally named the Brexit Freedoms Bill), which has potentially major implications for UK employment law. All regulations that implement EU law will automatically cease to exist under a “sunset” clause at the end of 2023 – unless they are restated or replaced before then. This would have applied to the rules about sexual orientation discrimination if they had remained in regulations. These rights are safe, however, because they were put into the Equality Act 2010 (along with all the other types of discrimination, including on the grounds of gender reassignment). Acts of Parliament as opposed to regulations are not subject to the sunset clause. This means that the protection from sexual orientation discrimination in the workplace will not be removed under this Bill.
In theory, the UK could still legislate to reduce or remove these provisions in the Equality Act because it is no longer bound by EU law. However, this is very unlikely for several reasons – including the need to maintain employment rights as part of the Brexit trade deal.
There is another area where LGBT+ rights could be reduced, which involves the current government’s plans for a new Bill of Rights. Our current Human Rights Act is based on the European Convention on Human Rights (ECHR), which is a human rights regime that is separate from the EU. It has recently been reported that Rishi Sunak is considering removing the UK from the ECHR. Over the years decisions from the European Court of Human Rights have been very influential on LGBT+ rights in the workplace, including seminal rulings from the late 1990s that the UK’s ban on gay and lesbian people serving in the armed forces was a breach of the right to respect for private and family life. Leaving the ECHR risks losing this important check on measures that threaten LGBT+ rights, whether in the workplace or in wider society.
The challenges facing LGBT+ people at work
Despite the progress that has been made, various challenges remain for LGBT+ people in the workplace – some caused by societal attitudes, and some caused by the need to accommodate others’ rights and beliefs.
- There have been lots of recent cases looking at the conflict between the rights of trans people not to be discriminated against and the rights of employees to hold and/or express “gender-critical” beliefs. Recent decisions have confirmed that gender-critical beliefs are capable of protection under the Equality Act, while holding such beliefs does not justify discriminatory behaviour against others. The uncertainty looks set to continue over the next year as a number of cases on this topic reach the appeal courts.
- The Equality Act itself contains a special exception to discrimination that only applies to sexual orientation, sex and marital status, relating to employment for the purposes of an organised religion. An employer is permitted to apply a requirement relating to sexual orientation in order to comply with the doctrines of the religion or to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers (for example, a requirement that a religious leader is not gay, or that a gay employee abstains from sex). The controversial nature of this exemption is shown by the controversy surrounding the Church of England’s recent decision to back plans to bless gay couples.
- A TUC poll from 2022 revealed a widespread lack of support for LGBT+ people at work – including findings that only 1 in 8 employers monitor their LGBT pay gap, and only 1 in 3 companies who have LGBT+ policies have updated them in the last 12 months.
- Generally, LGBT+ people tend to experience higher levels of difficulties at work. The CIPD report “Inclusion at Work – perspectives on LGBT+ working lives” from 2021 found that LGBT+ employees experienced heightened workplace conflict, more job dissatisfaction, lower psychological safety, and are more likely to report that work has a negative impact on their health. The findings show that trans people appear to experience the most difficulties, and the report also found that trans policies and practices need targeted improvements.
- There is an ongoing risk that the law is lagging behind current attitudes towards sexual orientation and gender, particularly in relation to the protection of non-binary people and other forms of gender identity.
We have undoubtedly come a long way in 20 years. It is good to reflect on progress so far, but it is also important to highlight what still needs to be done to ensure true equity and inclusion for LGBT+ people at work.
If you have any specific questions you would like advice on, then please contact: Abi.Frederick@lewissilkin.com or koichiro.nakada@lewissilkin.com of Lewis Silkin LLP.