Rain Without a Rainbow: How the Storm of Brexit is Hurting the Transgender Community & Transgender Asylum Seekers
As international Pride events take place this year honour of the 50th year anniversary of the Stonewall riots, it is often remarked on how much progress has been made to advance LGBTQI+ rights.
From the Gender Recognition Act in 2004 to equal marriage in 2013, legislation has been implemented in the UK to recognise and protect LGBTQI+ people and yet this doesn’t equate to equality across the board. Hate crime against the trans community has risen by a terrifying 81% since 2016/17 in Britain, as political leaders across the world, including the UK, are embracing regressive, conservative rhetoric.
Brexit has exposed gaping wounds across political spectrums in the UK. As the battle continues, the LGBTQI+ community remains at risk from boiling tensions and a particularly vulnerable group of individuals are struggling: transgender individuals seeking refuge. It is crucial that the government establishes reformed human rights legislation since, with the repeal of the EU Charter imminent, transgender individuals particularly will be at further risk of discrimination and abuse.
What Are the Current Laws Operating in the UK Regarding Protected Characteristics?
The UK and its people enjoy protection by EU laws and treaties such as the Charter of Fundamental Rights which states in Article 21 that ‘discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited’ (Gov UK).
This has a zero-tolerance approach to prejudice and yet it is set to be waived as Britain continues to hurtle towards crashing out of the EU.
Mark Pritchard Human Rights and LGBT+ Discrimination Barrister at Manchester’s Central Chambers says; “The European Convention on Human Rights has been of vital importance to the protection of trans people and the enforcement of their rights in the United Kingdom. Article 8, the right to a private and family life has had a profound impact in shaping equality laws before the introduction of the Human Rights Act and after. Rulings in cases in relation to article 8 and article 12 (the right to marry and found a family) are directly responsible for some of the rights found in the Equality Act 2010.”
Some may argue that the LGBTQI+ community are protected by both the Human Rights Act 1998 and the Equality Act 2010 thus suggesting there is no cause for concern post-Brexit. However, it is crucial to note that these Acts are at the whim of parliament and can be discarded at any time, whereas the EU Charter is internationally binding. As Stonewall explains: ‘Although the Government has stated that equalities legislation will not be eroded [post-Brexit], there isn’t a cast-iron commitment in the [EU Withdrawal] Bill that safeguards human rights’.
Moreover, the Equality Act fails to protect specifically trans individuals due to outdated wording such as the use of ‘gender reassignment’ meaning that ‘gender identity’ is not a protected characteristic. This leaves trans, intersex and non-binary individuals exposed to discrimination as those who self-declare their gender identity are not covered by either the Equality Act nor the Gender Recognition Act 2004.
In times of open bigotry from political leaders, gender non-conforming people and allies are speaking up in anger and anxiety. As transgender people fear for their safety among all the unrest, what could the future hold?
An Increase in Hate: Rising Tensions, Risks and Fears
A recent report by ILGA (International Lesbian, Gay, Bisexual, Trans and Intersex Association) analysed 49 countries within Europe and the results detail an obvious rollback in equality for the first time in ten years. Hate crime is on the rise as investigated by Stonewall in their 2017 report and gender identity is one of the most debated current topics, often resulting in mockery from polarising figures in the media.
Immigration policies post-Brexit are set to be fiercely strict as candidates of the current Tory leadership race have outlined their plans to reduce net migration numbers even further, such as the proposed implementation of a system identical to that of the Australian points-based system. If trans non-discrimination rights become obsolete upon the UK’s departure from the EU, the future looks bleak for transgender asylum seekers seeking refuge in the UK.
The discrimination that the trans community face in the UK is in such a dire state that in 2017 a British transgender woman was granted residency in New Zealand after years of hatred left her unable to face living in the UK.
Granted on humanitarian grounds, it was reported that forcing the woman to return to the UK would be ‘unduly harsh’ after she had settled in New Zealand since 2009. This presents a bizarre case of doublespeak, with Theresa May tweeting in support of Pride celebrations yet the UK government clearly failing transgender people.
The depressing reality is that the Home Office is unlikely to provide robust support and protection for transgender individuals escaping life-threatening persecution in their countries of origin whilst its own transgender citizens are exposed to such abuse and discrimination.
Transgender and Alone: Applying for Asylum in the UK
The process for applying for asylum is a complicated and distressing one that can take six months or more for a decision to be reached. In this time, asylum seekers are not permitted to work and many are placed in indefinite detention as they await a decision from the Home Office.
Combined with the ignorance surrounding LGBTQI+ lives, the invasive process of seeking asylum in the UK for transgender people in particular is a nightmare.
Mark explains further; “One of the key barriers to the grant of asylum to trans people today is the culture of disbelief at the Home Office. The hostile environment put in place by Teresa May as Home Secretary led to a significant increase in refusals. 64% of people claiming asylum are refused at the initial decision stage. 40% of those refusals are currently being overturned on appeal. This points to serious problems with the decision-making process at the Home Office which lead to delays in cases being resolved, “The culture of disbelief is such that those at the start of their trans journey are unlikely to be believed at all. There is still a lack of understanding around the process of “coming out” and the incremental steps people take in presenting their gender identity to the world.
Case studies suggest that the Home Office often treat trans people in overly medicalised terms and frequently ask inappropriate questions regarding gender reassignment surgery in interviews. This often leads to Home Office decisions stating that they do not believe a person to be trans. Even if it is found that a person is trans further obstacles are placed between them and asylum.” The pressure is on the applicant to convince the Home Office that it is likely if they return to or are forced to stay in their home country they are at risk of serious harm, be that imprisonment, physical harm or torture based on their gender identity or sexual orientation. It is also required of the applicant to prove their gender identity or sexuality - something which proves difficult when an individual has been forced to adopt their country of origin’s expected practices such as marrying a person of a different gender to theirs.
“The current test is whether the person lived openly in their home country. If they did not it is felt that they can return and live as they did without being at risk of persecution. This of course provides a major obstacle to the trans community in places where they would be unable to access any associated medical therapies or were never safe enough to present themselves as their true gender in public,” adds Mark.
This has led to many LGBTQI+ people seeking refuge having had their privacy cruelly violated as they feel they have no choice but to provide the Home Office with intimate evidence of their sexual orientation and/or gender identity.
Detention Discrimination and the Indignity of Being Held Indefinitely; The UK Lesbian and Gay Immigration Group’s 2016 report, ‘No Safe Refuge’, found transgender asylum applicants had suffered abuse whilst being detained across the UK in detention centres for asylum seekers, including being deliberately misgendered.
A devastating emotional drain begins to take its toll on transgender asylum seekers: they are treated as imposters, mixed with fear for their safety if they express their gender identity amongst fellow detainees, leading to detention centre staff questioning the legitimacy of their gender.
Brexit: A Whole New World or Apocalypse Wastelands?
The protection of LGBTQI+ rights post-Brexit is paramount to the safety, security and wellbeing of transgender people and all who identify within the LGBTQI+ family. Leftover practices and attitudes from the barbaric hostile environment policy must be completely destroyed.
Theresa May’s attempt in 2012 to appease anti-immigration noise created a monstrous situation for refugees and asylum seekers with a deliberate focus on making anyone seeking asylum in the UK feel uncomfortable and unwelcome.
In order to protect trans and LGBTQI+ rights post-Brexit, new human rights legislation must be produced with robust research, evidence and led by LGBTQI+ people and experiences.
This means all Home Office officials being appropriately educated on how to communicate with and support transgender and LGBTQI+ asylum seekers who suffer a particularly cruel emotional fallout of not only being forced to flee their homes because of living authentically, but face terrifying obstacles in the UK, a supposed safe haven for LGBTQI+ individuals.
Alexandra Jarvis is a writer for the Immigration Advice Service, an organisation of UK immigration solicitors which provides free advice and support for asylum seekers and victims of abuse.