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Published online by Cambridge University Press: 27 October 2017
In P v. S the Court of Justice sent out a strong message that it was keen to protect the rights of minorities. Ruling that the Equal Treatment Directive 76/207 applies to the gender reassignment of the person concerned, the Court gave protection to P, a male to female transsexual. To justify its decision the Court said “[to] tolerate such discrimination [against transsexuals] would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard”. Its genuine commitment to safeguarding such rights was put to the test in Grant, when faced by the claim of a lesbian for concessionary rail travel for her partner under Article 141 (Article 119) EC on equal pay.
1 Case C–13/94 P v. S and Cornwall County Council [1996] ECR I–2143.
2 Ibid at para.22.
3 The Industrial Tribunal referred questions on both Articles 141 and the Equal Treatment Directive. Following Case 12/81 Garland v. British Rail Engineering [1982] ECR 359, the Court ruled that travel concessions are pay within the meaning of Article 141.
4 [1998] ECR I–621.
5 OJ 1994 C61/40.
6 See also Coucil Regulation (EC, ECSC, Euratom) No 781/98, OJ L113/4 guarentees to Community Civil Servants equal treatment on the grounds of their sexual orientation.
7 See also the Advocate General’s Opinion at para. 22: “The Directive is nothing if not an expression of a general principle and a fundamental right . . . Respect for fundamental rights is one of the general principles of Community law, the observance of which the Court has a duty to ensure.”
8 Ibid at paras.18–19. The Court reached this conclusion even though Tesauro AG pointed out that it was indisputable that the wording of the principle of equal treatment laid down by the Directive referred to the traditional man/woman dichotomy.
9 Ibid at paras.20–21. See Wintemute, R., “Sexual Orientation Discrimination” in McCrudden, C. and Chambers, G. (eds.) Individual Rights and the Law in Britain (Clarendon Press, 1995)Google Scholar. As a result of the decision the UK adopted SI 1999/1102 The Sex Discrimination (Gender Reassignment) Regulations 1999.
10 In R v. Secretary of State of State for Employment, ex parte Seymour-Smith [1997] IRLR 315 the House of Lords has referred a question whether the two year service rule is indirectly discriminatory and the Court of Justice gave a rather unsatisfactory judgment in Case C–167/97 [1998] IRLR 253, noted by Barnard, C. and Hepple, B. “Indirect Discrimination: Interpreting Seymour-Smith ” 58 (1999) CLJ Google Scholar, forthcoming.
11 [1980] IRLR 174 (EAT); [1981] IRLR 277 (Court of Session). See also Boychuk v. Symons Holdings [1977] IRLR 395 where the EAT found that the dismissal of an employee for refusing to remove her badge at work (the badge said “Lesbians Ignite”) was fair.
12 [1996] IRLR 100.
13 Section 85(4) of the Sex Discrimination Act 1975 provides “Nothing in the Act shall render unlawful an act done for the purpose of ensuring the combat effectiveness of the naval, military or airforces of the Crown”.
14 [1997] IRLR 301, para. 25.
16 [1998] IRLR 166.
17 Above n. 4 at para.27.
18 para.28. See also Case T–264/97 D v. Council, judgment of 28 January 1999, para 43.
19 App. No. 9369/81 (1983) 32 DR 220, 5 EHRR 601.
20 See for other examples of this approach: Singer v. Hara, 522 P2d 1187 (Wash.Ct.App.1974); De Santis v. Pacific Telephone, 608 F2d 327 (9th Cir.1979); State v. Walsh, 713 SW.2d 508 (Missouri 1986).
21 It was on this basis that the Court of Appeal in Smith v. Gardner Merchant [1998] IRLR 510 remitted the case of sexual harassment of a homosexual to the Employment Tribunal to determine whether that treatment was less favourable than would have been meted out to a homosexual woman.
22 Above n 1 at para.21.
23 Armstrong, K. “Tales of the Community: Sexual Orientation Discrimination and EC Law” 20 (1998) JSWFL 455 Google Scholar.
24 See, for example, Ainsworth v. Glass Tubes & Components [1977] IRLR 74 where the EAT held that the Industrial Tribunal cannot substitute its own choice of comparator for the comparator selected by the applicant.
25 See Wintemute, R. “Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes” 60 (1997) MLR 334, 347CrossRefGoogle Scholar.
26 Armstrong, above, n 23.
27 Wintemute, ibid at 344–357.
28 These arguments did receive some support in an Industrial Tribunal decision Wallace & O’Rouke v. BG Tunkey Services (Scotland) Ltd (unreported, 9 July 1993), cited in Bamforth, N. Sexuality, Morals and Justice: A Theory of Lesbian and Gay Rights (Cassell, 1997) 44 Google Scholar.
29 Armstrong’s note provided valuable assistance in thinking about this section.
30 See Armstrong, above, n 23. See also the views of Tesauro AG in P, above n 1. He advocated at para 9 the need for law to keep pace with the times “otherwise it risks imposing outdated views and taking on a static role. [It] must therefore be capable of regulating new situations brought to light by social change and advances in society”. Consequently, a directive of 1976 which took account of what was “normal” at that stage should now be construed in a broader perspective. He said that it was necessary to go beyond the traditional classification and recognise that, in addition to the man/woman dichotomy, there is a range of characteristics, behaviour and roles shared by men and women so that sex itself ought to be thought of as a continuum.
31 See EOR No.78, March/April 1998, 48, 49.
32 852 P.2d 44 (Hawaii 1993). The significance of this may be considerable since states are obliged to give full faith and credit to marriages recognised by other states even if these marriages are not permitted in the domicile state. See Griffin, A. “Another Case, Another Clause—Same-Sex Marriage, Full Faith and Credit and the US Supreme Court’s Evolving Gay Rights Agenda” [1997] PL 315 Google Scholar. The case is being appealed to the Supreme Court and in the meantime the federal authorities have passed the Defense of Marriage Act 1996 to confine the definition of marriage to heterosexual unions only. See Bamforth, above n.28 at 46.
33 Ibid at 60.
34 Ibid at 67.
35 ibid at 71.
36 388 US 1 (1967).
37 See Koppelman, A. “Why Discrimination Against Lesbians and Gay Men is Sex Discrimination” 69 (1994) New York University Law Review 197 Google Scholar.
38 Case C–177/88 Dekker v. Stichting Vormingscentrum voor Jong Volwassenen [1990] ECR I-3941, para.l2. See also Case C–179/88 Hertz v. Dansk Arbejdsgiverforening [1990] ECR I–3979 “the dismissal of a female worker on account of pregnancy constitutes direct discrimination on the grounds of sex”. See Wintemute, R. “When is Pregnancy Discrimination Indirect Sex Discrimination?” 27 (1998) ILJ 23 CrossRefGoogle Scholar.
39 Above n. 4 at para.15 of the opinion.
40 Ibid at para.47.
41 This approach would potentially offer a way of dealing with discrimination against biscxuals.
42 523 U.S 75; 118 S.Ct 998.
43 See Barnard, C. “The Principle of Equality in the Community Context: P, Grant, Kalanke and Marschall: Four Uneasy Bedfellows” 57 (1998) CLJ 352 CrossRefGoogle Scholar.
43a Ibid.
44 [1989] 1 SCR 143. See Gold, M. 34 (1989) McGill L.J 1063 Google Scholar.
45 [1989] 1 SCR 1296. Subsequent developments have been less positive: see, for example, Lepofsky, D. “The Canadian Judicial Approach to Equality Rights: Freedom Ride or Roller Coaster?” 55 (1992) Law and Contemporary Problems 167 CrossRefGoogle Scholar; Beatty, D. “The Canadian Charter of Rights: Lessons and Laments” 60 (1997) MLR 481 CrossRefGoogle Scholar, 490; Ison, T. “A Constitutional Bill of Rights—The Canadian Experience” 60 (1997) MLR 499, 500CrossRefGoogle Scholar.
46 Section 15(2) says that s.l5(l) does not preclude any law, programme or activity that has as its object “the amelioration of conditions of disadvantaged individuals, or groups”, including those disadvantaged for one of the enumerated grounds. Section 1 preserves as constitutional any reasonable limits on Charter rights which are “prescribed by law” and which can be “demonstrably justified in a free and democratic society”.
47 See also Lacey, N. “From Individual to Group?” in Hepple, B. and Szyszczak, E. (eds.) Discrimination: the Limits of the Law (Mansell, 1992) 104 Google Scholar and Mackinnon, C. “Reflections on Sex Equality under Law” 100 (1991) Yale Law journal 1281, 1325CrossRefGoogle Scholar.
48 [1995] 2 SCR 513. However, the majority found that while a distinction between same-sex couples and unmarried opposite-sex couples in relation to a benefit provided by government was based on sexual orientation and was “discrimination” contrary to section 15(1) this violation could be justified, at least temporarily under s.1. Discussed in Wintemute, R. “Discrimination against Same-sex Couples: Sections 15(1) and 1 of the Charter: Egan v. Canada ” 74 (1995) Canadian Bar Review 682 Google Scholar and Bamforth, above n 28 at 36–37. Herman, D. The Good, the Bad and the Smugly: Perspectives on the Canadian Charter of Rights and Freedoms” 14 (1994) OJLS 589 CrossRefGoogle Scholar. Egan was not cited by the Court of Justice in Grant. See also Vriend v. Alberta, File No.25285, where the Canadian Supreme Court found that the exclusion of sexual orientation from the Individual’s Rights Protection Act of Alberta infringed s.15(l) of the Charter and was not justifiable under s.l As a remedy, the words “sexual orientation” had to be read into the prohibited grounds of discrimination.
49 Ibid at 528.
50 Case No.97/023677, [1998] 6 BCLR 726 (w).
51 Cameron, , “Sexual Orientation and the Constitution: A Test Case for Human Rights” 110 (1993) SALJ 450 Google Scholar.
52 See further Bell, M. “The new Article 13 EC Treaty: A Sound Basis for European Anti-Discrimination Law?” 6 (1999) Maastricht Journal, 5 CrossRefGoogle Scholar; Waddington, L. “Article 13 EC: Mere Rhetoric or a Harbinger of Change”, 01 (1998) CYEL 175 Google Scholar.
53 Para.31.
54 Citing in particular the decisions in Application No 9369/81, X and Y v. United Kingdom, 3 May 1983, DR 32, 220; Application No 11716/85, S v. United Kingdom, 14 May 1986, 47 DR 274, paragraph 2; and Application No 15666/89 Kerkhoven and Hinke v. Netherlands, 19 May 1992, unpublished, paragraph 1), and that national provisions which, for the purpose of protecting the family, accord more favourable treatment to married persons and persons of opposite sex living together as man and wife than to persons of the same sex in a stable relationship, are not contrary to Article 14 of the Convention, which prohibits inter alia discrimination on the ground of sex (see the decisions in S v. United Kingdom, paragraph 7; Application No 14753/89, C and LM v. United Kingdom, 9 October 1989, unpublished, paragraph 2; and Application No 16106/90, B v. United Kingdom, 10 February 1990 64, DR 278, paragraph 2). The Court also pointed to the decisions of the European Court of Human Rights interpreting Article 12 of the Convention as applying only to the traditional marriage between two persons of opposite biological sex (see the Rees judgment of 17 October 1986, Series A no. 106, 19, § 49, and the Cossey judgment of 27 September 1990, Series A no. 184, 17, § 43). See Wintemute, R. Sexual Orientation and Human Rights: The United States Constitution, the European Convention, and the Canadian Charter (Clarendon, 1997)Google Scholar, chap 5 and van Dijk, P., “The Treatment of Homosexuals under the European Convention on Human Rights” in Waaldijk, K. and Clapham, A. (eds.) Homosexuality: A European Community Issue (Dordrecht, 1993)Google Scholar.
55 See, in particular, Case 59/85 Netherlands v. Reed [1986] ECR I–1283.
55a Case T–264/97, judgment of 28 January 1999, not yet reported, para. 28.
56 She said that differences in treatment based on sexual orientation originated in prejudices regarding the sexual and emotional behaviour of persons of a particular sex, and were in fact based on those persons’ sex. She submitted that such an interpretation followed from the judgment in P v. S and corresponded both to the resolutions and recommendations adopted by the Community institutions and to the development of international human rights standards and national rules on equal treatment.
57 Communication No 488/1992, views adopted on 31 March 1994, 50th session, point 8.7. [1994] 1 IHRR 97.
58 Above n 4 at para.44, citing, for example, Case 374/87 Orkem v. Commission [1989] ECR 3283, paragraph 31, and Joined cases 163 C–297/88 and C–197/89 Dzodzi v. Belgian State [1990] ECR I–3763, paragraph 68.
59 Ibid at para.45.
60 Ibid at para.46.
61 Ibid at para.47.
62 Ibid.
63 Ibid.
64 See, for example, Hartley, T. “The European Court, Judicial Objectivity and the Constitution of the European Union” 112 (1996) LQR 95 Google Scholar, 95: “It is becoming more and more widely recognised that the Court of Justice . . . sometimes interprets provisions of the Treaties contrary to the natural meaning of the words used, an activity to which the phrase ‘judicial legislation’ may justifiably be applied”. See also Arnull, A.’s response “The European Court and Judicial Objectivity: A Reply to Professor Hartley” 112 (1996) LQR 95; Tridimas, T. “The Court of Justice and Judicial Activism” 21 (1996) ELRev. 199 Google Scholar.
65 According to Tesauro AG’s in P v. S, above n 1 at note 6, in Europe 1 in 30,000 males and 1 in 100,000 females seek to have a sex change operation. Elmer AG in Grant above n 4 at para 42 estimated that there were 35 million homosexuals in the Union.
66 See further Barnard, C. “The Economic Objectives of Article 119” in Hervey, T. and O’Keeffe, D. (eds) Sex Equality Law in the European Union (Wiley, 1996) 321 Google Scholar.
67 Mancini, G.F. “The Making of a Constitution for Europe” 26 (1989) CMLRev. 595 Google Scholar, 611.
68 Coppel, J. and O’Neill, A. “The European Court of Justice: Taking Rights Seriously?” 12 (1992) Legal Studies 227 CrossRefGoogle Scholar and the responses by Weiler, J.H.H., and Lockhart, J. 32 (1995) “‘Taking Rights Seriously’: the European Court and its fundamental rights jurisprudence”, CML Rev. 51 Google Scholar and 579.
69 See, for example, Case 29/69 Stauder v. City of Ulm [1969] ECR 419; Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125; Case 44/79 Hauer v. Land Rheinland-Pfalz [1979] ECR 3727 and Cases 46/87 and 227/88 Hoechst v. Commission [1989] ECR 2859.
70 Case 222/84 Johnston v. RUC [1986] ECR 1651; Case 5/88 Wachauf v. Germany [1989] ECR 2609; Case C–260/89 ERT [1991] ECR I–2925. See Craig, P. and De Búrea, G. EU Uw: Text, Cases and Materials (Oxford University Press, 1998)Google Scholar chap. 7.
71 Dicey, A.V. Introduction to the Study of the Law of the Constitution (10th ed., with an introduction by Wade, E.C.S., Macmillan, 1959)Google Scholar.
72 The new Article 74 of the TEU provides: “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States”.
73 Above n 4 at para.42.
74 “Staatenverbund”: the German Maastricht decision Brunner [1994] 1 CMLR 57.
75 Case 294/83 Parti Ecologiste “Us Verts” v. European Parliament [1986] ECR 1339, para. 23 and Opinion 1/91 Re the Draft Treaty on a European Economic Area [1992] [1991] ECRI–6079. See Stein, E. “Lawyers, Judges and the Making of a Transnational Constitution” 75 (1981)Google Scholar American journal of International Law 1: “the Court has construed the European Community Treaties in a constitutional mode rather than employing the traditional international law methodology”. See also Weiler, J. “The Transformation of Europe” 100 (1991) Yale Law Journal 2403 CrossRefGoogle Scholar, 2407; and Schermers, H. “The European Court of Justice: Promoter of European Integration” 22 (1974) American Journal of Comparative Law 444 CrossRefGoogle Scholar.
76 See O’Leary, S. European Union Citizenship: Options for Reform (IPPR, 1996). For a discussion of the specific problems facing gays and lesbians in respect of the citizenship provisions see Tanca, A. “European Citizenship and the Rights of Gay and Lesbian Men” in Waaldijk, K. and Clapham, A. (eds.) Homosexuality: A European Community Issue (Martinus Nijhoff, 1993)Google Scholar.
77 See Everson, M. “The legacy of the Market Citizen” in Shaw, J. and More, G. (eds.) New Legal Dynamics of European Union (OUP, 1995)Google Scholar.
78 See Ward, I. “(Pre)conceptions in European Law” 23 (1996) Journal of Law and Society 198 CrossRefGoogle Scholar.
79 O’Leary, S. “The Relationship between Community Citizenship and the Protection of Fundamental Rights in Community Law” 32 (1995) CMLRev. 519 Google Scholar. See also O’Keeffe, D. “Union Citizenship” in O’Keeffe, D. and Twomey, P. (eds.) Legal Issues of the Maastricht Treaty (Chancery, 1994), 87 Google Scholar.
80 Bercusson, B. et al., “A Manifesto for Social Europe” 3 (1997) ELJ 189 CrossRefGoogle Scholar; For a Europe of Civic and Social Rights, Report by the Comité des Sages chaired by Maria de Lourdes Pintasilgo, Brussels, October 1995–February 1996, Commission, DGV; Blanpain, R., Hepple, B., Sciarra, S. and Weiss, M. Fundamental Social Rights: Proposals for the European Union (Peeters, 1996) 1 Google Scholar.
81 Shaw, J. “The Many Pasts and Futures of Citizenship in the European Union” 22 (1997) ELRev. 554 Google Scholar and Shaw, J. “The Interpretation of European Union Citizenship” 61 (1998) MLR 293 CrossRefGoogle Scholar. See also Reich, N. “A European Constitution for Citizens: Reflections on the Rethinking of Union and Community Law” 3 (1997) ELJ 131 CrossRefGoogle Scholar.
82 White Paper on Social Policy COM(94)333, para.3.
83 See, for example, Case 293/83 Gravier v. City of Liège [1985] ECR 593.
84 See for comment Temple Lang, J. “The Duties of National Courts under Community Constitutional Law” 22 (1997) ELRev. 3 Google Scholar.
85 Case C–214/94 Boukhalfa v. Federal Republic of Germany [1996] ECR I–2253.
86 See, for example, Case C–193/94 Skanavi [1996] ECR I–929; Cases C–64/96 and 65/96 Uecker and Jacquet [1997] ECR 3171.
87 Case C–85/96 Martinez Sola v. Freistaat Bayern, 12 May 1998 (not yet reported). See Friess, S. and Shaw, J. “Citizenship of the Union: First Steps in the European Court of Justice” 4 (1998) European Public Law 533 Google Scholar and O’Leary, S. “Putting Flesh on the Bones of European Union Citizenship” (1999) 24 ELRev. 68 Google Scholar.
88 Ibid at para.62.
89 See O’Leary, S. “The Principle of Equal Treatment on Grounds of Nationality in Article 6 EC: A Lucrative Source of Rights for Member States Nationals?” in Dashwood, A. and O’Leary, S. (eds.) The Principle of Equal Treatment in EC Law (Sweet and Maxwell, 1996), 105 Google Scholar.
90 Armstrong, above, n 23.
91 Weiler, J.H.H. “Journey to an Unknown Destination: A Retrospective and Prospective of the European Court of Justice in the Arena of Political Integration” 31 (1993) JCMS 417 Google Scholar, 419.
92 Mancini, G.F. above, n 67, 596: “the Court has sought to ‘constitutionalise’ the Treaty, that is to fashion a constitutional framework for a federal-type structure in Europe”.
93 Brunner v. The European Union Treaty Cases 2 BvR 2134/92, 2159/92 [1994] 1 CMLR 57. See Herdegen, M. “Maastricht and the German Constitutional Court: Constitutional Restraints for an ‘Ever Closer Union’ 31 (1994) CMLRev. 235 Google Scholar, considered by Weiler, J.H.H. “Does Europe Need a Constitution: Demos, Telos and the German Maastricht Decision” 01 (1995) ELJ 219 CrossRefGoogle Scholar.
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95 Joined cases 60 and 61/84 [1985] ECR 2605, para.26. See also Case C–2560/89 ERT [1991] ECR I–2925. See further Toth, A. “The European Union and Human Rights: The Way Forward” 34 (1997) CMLRev. 491 Google Scholar, 496.
96 Opinion 2/94 [1996] ECR I–1759. See CELS Occasional Paper No.l, The Human Rights Opinion of the ECJ and its Constitutional Implications (1996).
97 Ibid at paras. 23 and 24. See generally, Dashwood, A. “States in the European Union” 23 (1998) ELRev. 201 Google Scholar.
98 Ibid at paras. 27 and 28. On the question whether a human rights policy could be based on Article 308, see EUI, Leading by Example: A Human Rights Agenda for the European Union for the Year 2000, Agenda of the Comité des Sages and Final Project Report (EUI, 1998), 50.
99 Ibid at para.30.
100 See text attached to n 59.
101 See text attached to n 70.
102 Dashwood, A. “The Limits of European Community Powers” 21 (1996) ELRev. 113 Google Scholar. See also Case 152/82 Forcheri v. Belgium [1983] ECR 2323, para. 17.
103 Case C–132/92 Roberts v. Birds Eye Walls [1993] ECR I–5579.
104 Case 130/75 Prais v. Council [1976] ECR 1589.
105 M.Rubinstein, Editorial, [1998] IRLR 165.
106 See, for example, Chessington World of Adventures v. Reed [1997] IRLR 556 where the EAT made it clear that the Sex Discrimination Act applies to transsexuals. See also Case No. 1200389/97 Sheffield v. Air Foyle Charter Airlines, 29 May 1998 “not yet reported”. The government is now proposing legislation regarding discrimination on grounds of transsexualism in employment: see EOR No.78, March/April 1998, 30.
107 R v. Secretary of State for Defence, ex parte Perkins [1997] IRLR 297. The decision in Grant also meant that one of the grounds of appeal in Smith v. Gardner Merchant [1998] IRLR 510 had to be abandoned. The case concerned the allegation by a gay barman that he had sexually harassed by a female colleague on the grounds of his sexual orientation. The argument that the Equal Treatment Directive prohibits discrimination on the grounds of sexual orientation was dropped.
108 In Egan, above n 48, Cory and Iacobucci JJ observed at para.175 that section 15(1) of the Charter encompasses aspects of status and conduct and that both should receive protection. Sexual orientation is demonstrated in a person’s choice of a life partner, whether heterosexual or homosexual. It follows that a lawful relationship which flows from sexual orientation should also be protected.
109 R v. Secretary of State for Defence, ex parte Perkins [1998] IRLR 508.
110 See also Ex parte Smith, above n 12, 106 per Sir Thomas Bingham MR.
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