Why is no one talking about the Brexit threat to LGBT rights?

The House of Commons has voted to reject the only treaty binding on the UK that expressly protects against discrimination on the basis of sexual orientation. If the EU withdrawal bill is unamended in the Lords, the EU charter will cease to have effect in UK law after Brexit. Article 21 of the charter, inter alia, prohibits discrimination based on sexual orientation.

The LGBT community in the UK remains vulnerable and marginalised. Some still despise us. In the past decade or so, exponentially our rights have been recognised in law. It’s been extraordinary to witness, as well as experience. But as is well documented, meaningful equality eludes LGBT people. The type of everyday normalcy that heterosexual people can take for granted is still not an option for countless LGBT people. Does that lack of equality result in harm? Sometimes it can. Other stuff we just put up with. That’s why we need as much protection as possible.

Can we take our newfound rights for granted? Objectively we may know that they are secure, but as the overwhelming majority of us will have experienced or observed some form of hate against LGBT people, we don’t trust that our rights are for real. We grew up expecting to be harmed because we were LGBT. Therefore, to take away existing protections for LGBT people without replacing them with something comparable or better, is deeply damaging for the LGBT community on multiple levels.

The institutions of state, as well as the individuals, who persecuted us remain all around us. It was after all the Westminster parliament that led the way in targeting gay men. There wasn’t a single organ of government that was not complicit in causing LGBT people harm. And the journey taken by that parliament towards recognising our rights has not been straightforward. At times, it has been one step forward, two steps backwards. Arguably when we were most vulnerable, at the peak of the Aids crisis, Westminster turned on us again with its spiteful section 28.

The Westminster parliament has played its part in making amends, but without the carrot and stick of European institutions would we enjoy the level of protection from discrimination that we now possess? When the first drafts of the EU charter were revealed almost 20 years ago, I can still recall the thrill that protection from discrimination on the grounds of sexual orientation was expressly included. In fact, “thrill” doesn’t adequately capture the sense of elation. We were about to be recognised in international law. We weren’t to be squeezed into a catchall provision like those of “other status” who may, or may not, deserve protection. We were recognised in our own right. It was unbelievable.

Barely four years earlier I had lamented the limited nature of protection for LGBT people under the European convention. The European convention on heterosexual peoples’ rights was what I, cheekily, called it. But, at least there was some privacy protection under the ECHR. There was no protection for gay and lesbian people in UK law. The crowning glory of our discrimination had just been established. Not even the outstanding Lord Bingham, arguably the finest postwar judge in the common law world, could protect gay and lesbian members of the armed forces from being fired. Even back then, trans people had a degree of protection thanks to the European court of justice. European anti-discrimination law safeguarded them.

The EU charter, with its panoply of rights that could be applied to LGBT people, was adopted in 2000. It was the dawn of a new age for us. Originally it was non-binding and then it became legally enforceable in 2009. From the moment the charter was solemnly declared, the impossible had been achieved. The queers, the dykes, the poofs and the benders – those who had been the most despised among us – were now protected and what’s more could command institutional support.

And now, unless the House of Lords can work its magic, this government, under the cover of Brexit, is taking that charter away. The elation of 2000 is replaced with a sense of foreboding. Westminster has done it again. It leaves us at risk. That defining legislation of Gordon Brown’s government, the Equality Act, protects us, but it does not provide a freestanding assertion of our right not to be discriminated against. The charter applies across the wide spectrum of EU law. Neither the Human Rights Act nor the European convention mentions us, even though the rights they contain have been interpreted in a way that does.

As our rights are rolled back what else might go? When the European court of human rights ruled that gay men and lesbians could not be dismissed simply because of their sexual orientation, Ian Duncan Smith announced that once returned to power, if the Ministry of Defence wanted to retain the ban, a Conservative government would re-introduce it. The current MoD is unlikely to behave so irrationally, but what about those bed and breakfast proprietors who don’t want LGBT people sleeping together in their homes? It offends their faith, they say, and after all it is their own homes. Why can’t they be protected by the law?

UK human rights law is not as comprehensive as the EU charter. Losing the charter will affect everyone, but some are particularly well served by it. The LGBT community will feel its loss noticeably, but so will women and children. But all of us will lose our right to human dignity. That doesn’t exist in UK law. We’ll lose rights to run a business and have an occupation. The right to work-life balance goes too, as does protection of personal data. Academic freedom will go and a right to conscientious objection. Media pluralism is also going to be jettisoned. The list goes on and I haven’t even started on rights in the workplace or high levels of health protection, as well as protections for the environment and the consumer.

But as we lament what we will all have lost if we don’t include the charter as part of retained EU law after Brexit, spare a thought for the LGBT community. That charter acknowledged us – and the harm that has been and continues to be done to us – for the first time. We’re not only just about to lose our rights, we’re losing the very foundation of our liberation.

• Jonathan Cooper OBE is a lawyer and human rights specialist with experience before English and international courts and tribunals