Homophobia, Brexit and constitutional change

Abstract

Purpose This paper addresses some of the future challenges that the vote to leave the European Union (EU) may have on the UK’s constitutional framework. The potential abolition of the Human Rights Act 1998 and its replacement with a Bill of Rights is examined in relation to the interpretation of freedom of expression. More specifically, this is analysed in relation to the often conflicting freedoms to express homophobic views and to freely express one’s sexual identity. With EU law protecting many of the recently won rights favouring lesbian, gay, bisexual and transgender (LGBT) equality, the purpose of this paper is to underline the potential dangers should this layer of international scrutiny be lost and highlight where more improvements for equality are still needed. Design/methodology/approach This paper offers a critical reflection on the recent political and judicial rhetoric which has accompanied the issues of LGBT social and legal equality. Recent judgements from domestic and European courts are analysed to identify how any potential re-interpretation of freedom of expression may affect the LGBT community. Findings While the UK has made welcome strides in improving the legal equality of the LGBT community, it is argued that the potential loss of judicial scrutiny from the European Court of Human Rights and the European Court of Justice may have negative consequences. An examination of recent judicial and political discourse demonstrates that homophobic expression – or at least tacit acceptance of it – still permeates throughout these institutional spheres. Originality/value The paper highlights how the subtleties of constitutional changes following Brexit may threaten the current progression of LGBT rights in the UK and proposes that a commitment to freedom of expression must give greater recognition to the right to express sexual identity.