From Section 28 to gender reforms: the risks to LGBTQ+ equality in 2023

Laws protecting members of the LGBTQ+ community are at risk of being set back decades, reports The University of Law (ULaw), one of the UK’s longest-established specialist providers of legal and business education in the UK.

To mark LGBT History Month in February, ULaw has explored the turbulent history of LGBTQ+ laws in the UK, and what the future might hold for this community.

Over the course of several decades, and thanks to the commitment of pioneering human rights activists, LGBTQ+ rights have made huge progress in recent years. However, recent events have brought about a nervousness that these rights in the UK could start to move backwards.

A brief history of LGBT laws in the UK

The shifting culture of the late 1960s brought about the first significant legal LGBT+ milestone in UK law and politics. After many years of campaigning for LGBT rights, eventually The Sexual Offences Act 1967 was passed. This move decriminalised homosexual acts in private between two men, both of whom had to be at least 21, but only in England and Wales.

This was very much just the beginning, as homosexuality was still a criminal offence in Scotland and Northern Ireland, which didn’t change until legislation was passed in 1980 and 1982 respectively. The decriminalisation laws also stipulated a higher age of consent for homosexuality, which was not equalised until the Sexual Offences (Amendment) Act of 2000, after years of pressure from activist groups.

However, this significant legal progress to gain rights and protections for the LGBT+ community has not been without challenges and difficulties, as demonstrated by the somewhat incremental progression over the course of the last 56 years since decriminalisation. During this period of progress, government policymakers have also passed legislation that has set back LGBT+ equality, such as Section 28.

Section 28 explained

The passing of Section 28 in 1988 meant that local authorities and schools were restricted from ‘promoting homosexuality’. This meant that representation and acknowledgement of LGBT+ identities were erased from schools and teachers were threatened with disciplinary action for discussing homosexuality or effectively challenging homophobia. In many cases, this led to increased homophobic bullying, a lack of support or guidance for LGBT+ teens and young adults, which in turn increased the risks to these young people who did not have a conventional support network.

The legislation also stunted vital communication and education as the LGBT+ community struggled with the AIDS epidemic and allowed ignorance and discriminatory attitudes to grow amongst the general public due to a lack of education and awareness.

Section 28 was eventually overturned in Scotland in 2000 and in England and Wales in 2003, but not after causing significant harm to many generations of LGBT+ people who grew up during this time. The topic of LGBT+ education in schools is once again back in focus, with a growing campaign to remove LGBT+ education from the curriculum and return to a Section 28-style ban on discussion of the topic in schools.

What challenges do we face to LGBT+ rights now?

While there are many positive developments to celebrate from the legal progress we have seen in the last few decades, the existence of Section 28 demonstrates how this progress is rarely linear nor without setback, and how easy it is for lawmakers to implement legislation that is harmful to marginalised communities.

Unfortunately, research shows a troubling rise in anti-LGBT+ rhetoric, discrimination, and hate crime incidents in recent years, which highlights significant challenges for progress in this area. These challenges and issues are disproportionately felt by the trans community, who have been directly impacted in the last few weeks by a significant legal challenge in Scotland and polarised media debate.

This topic has become all the more prevalent in recent weeks, with Rishi Sunak’s controversial move to use Section 35 of the Scotland Act to block the Scottish government’s landmark gender reforms, as well as a growing petition to bring back Section 28.

This is the first time in history we’ve seen the section 35 mechanism used, and many are calling it “this Government's version of Section 28”.

What is a Section 35 Order?

This order gives the UK government the power to block a bill passed in Scotland before it proceeds to Royal Assent to be made law.

The use of this order to block Scotland’s ground-breaking new gender reform laws has triggered huge protests across Scotland. Meanwhile, Scotland’s First Minister, Nicola Sturgeon, has described it as “a full-frontal attack on our democratically elected Scottish parliament. ”

How easy is it to overturn the laws protecting the LGBTQ+ community?

There is a growing concern around the protection of LGBTQ+ rights in the UK. Most recently, we’ve seen a petition gathering more than 190,000 signatures demanding the government brings back Section 28. At more than 100,00 signatures this petition will now be debated in Parliament.

Combined with the Prime Minister’s controversial move to block Scotland’s gender reform laws, it is fair to say this nervousness among the community is somewhat justified. If we do start to see the laws protecting the LGBTQ+ community erode, then equal rights will be set back decades.

The encouraging news is that it isn’t quite so simple to overturn or change a law in the UK. Some petitions such as the one mentioned above may gather some traction and even warrant debate in Parliament. However, to officially set something like this into UK law takes several rounds of debate in either the House of Commons or House of Lords, before proceeding to Royal Assent.

That isn’t to say these laws are completely safe. More than anything, what this means is that it’s perhaps more important now than ever before to make your voice heard and protect LGBTQ+ rights in the UK.

To read more about the history of LGBTQ+ laws in the UK, visit: https://www.law.ac.uk/resources/blog/why-do-we-still-need-lgbtq-history-month/