If the government gets its way on Brexit this week, the rights of LGBT people could suffer a devastating blow

While ministers tell us we have nothing to worry about, it’s not a great many years since being LGBT meant experiencing institutional prejudice on a daily basis

It’s all sorted, or so the government tells us. Don’t worry about Brexit and all the legislative changes it entails, ministers say: the law protects LGBT people from prejudice and will quickly snuff out any future attempt to harm people on the basis of their sexual orientation or gender identity.

After all, we have the Equality Act 2010 which, to all intents and purposes, puts the prohibition on discrimination against LGBT people on the same footing as gender or race. There’s also the Human Rights Act 1998 and the related case law that shows how UK courts and the European Court of Human Rights in Strasbourg can protect LGBT people. With all this protection available, surely it doesn’t matter if the Government gets rid of the EU’s human rights framework post Brexit.

Well, as things stand we’ll have to hope so, because that’s David Davis’ plan. When we leave the EU we’ll retain all EU law except the EU Charter of Fundamental Rights.

Yet the reality is that in the absence of an express, open-ended prohibition on sexual orientation discrimination, such as that contained in the EU Charter, gay, lesbian and bisexual people will remain at risk from harm. And while the government tell us we have nothing to worry about, it’s not a great many years since being LGBT meant experiencing institutional prejudice on a daily basis. The memories are very clear and very real for many.

It’s true that the European Convention on Human Rights (which is the basis of our Human Rights Act) and other human rights treaties ratified by the UK have been interpreted to mitigate discrimination on the basis of sexual orientation. The specific words don’t appear however. The Charter is different – it contains an explicit prohibition on discriminating against someone because of their sexuality. That means whenever EU law is in play the Charter applies and if you are gay, lesbian or bi you cannot be discriminated against.

For anyone who remains in any doubt about why the government’s proposal to ditch the Charter matters, recent court cases throw the issue into sharp relief.

Last Monday, the US Supreme Court held that the issue to be resolved in a case where a baker had refused to bake a cake for a gay wedding was the way in which the baker was treated by the local state-run human rights commission, as opposed to addressing the underlying discrimination. This was possible because, in the absence of sexual orientation protection at the federal level, the US Supreme Court was able to twist the case and make it about something which it wasn’t.

Contrast this with the judgment of the European Court of Justice handed down the following day. That court, the EU’s highest, decided that the term “spouse”, for the purposes of EU free movement rights, must include a married same-sex partner. In this case, where the judgment was underpinned by the EU Charter, the prohibition on LGBT discrimination necessarily formed the backdrop. This fundamental principle is therefore a tenet of EU law because of the Charter.

And then last Wednesday came the decision from the Bermuda High Court reinstating equal marriage there. That Court found that the legislature couldn’t simply remove same-sex marriage and replace it with something different, and by implication lesser (domestic partnerships). This was because Bermuda’s constitutional framework expressly forbids discrimination on the basis of sexual orientation. Therefore, marriage could not be denied a gay or lesbian couple.

As it happens, the UK Supreme Court is also considering a gay cake case at the moment. Arguments have already been heard and it seems inevitable that the baker will lose because the law at the moment requires that people are protected on the basis of their sexual orientation. The root of that protection is, yes, the EU Charter.

Nowadays we take LGBT equality more or less for granted, but the truth is that if the Charter is lost – or, indeed, deliberately jettisoned by our present government – the chances of our courts following the path of the US Supreme Court and down-playing discrimination on grounds of sexual orientation will inevitably increase.

The Equality Act is, after all, just an Act of Parliament; its scheme can be easily altered. New laws could be passed enabling bed and breakfast owners to discriminate against gay men and lesbians. Catholic adoption agencies might just lobby hard enough to persuade a future government that they shouldn’t be required to allow LGBT people to adopt. The old, easily forgotten ideas about gay rights not amounting to equality might become fashionable once again. And then where will we be?

On Wednesday the House of Commons will consider the amendments of the House of Lords in relation to the EU Withdrawal Bill and the Charter specifically. The House of Lords opposed the Government and voted to retain it. If the Commons overturns the Lords’ amendment and the Charter is rejected, LGBT people in the UK will be less protected and therefore more vulnerable. The Charter is a vital bulwark against the dilution of LGBT rights and should be regarded as such.

What do we want Britain to look like after Brexit? Was the decision to leave the EU a vote against human rights? Was it a vote against the LGBT community? If the Charter goes it will feel like it, and before too long we may start to live out the grim consequences.