R v Secretary of State for Defence ex parte Perkins [1997] IRLR 297 - High Court
The High Court has referred to the European Court of Justice the question of whether discrimination based on sexual orientation is a breach of the Equal Treatment Directive. The move advances the battle to achieve employment protection and equality for lesbians and gay men at work.
The ECJ has been asked to rule whether Article 2(1) of the Directive, which provides that "there shall be no discrimination whatsoever on the grounds of sex either directly or indirectly", covers sex discrimination based on sexual orientation.
Mr Perkins was discharged from the Royal Navy because he is gay. This follows the Armed Forces ban on homosexuality. Mr Perkins challenged this policy and brought judicial review proceedings claiming that his discharge is a breach of Article 2(1) of the Equal Treatment Directive.
This is not the first occasion on which the Ministry of Defence's ban on homosexuality has been challenged in the UK Courts. In the case of R v Ministry of Defence ex parte Smith [1995] IRLR 585 High Court and 1996 [IRLR] 100 CA, the Court of Appeal rejected an earlier challenge to the ban and said that in their view "any common sense construction of the Directive...leads to the inevitable conclusion that it was solely directed to gender discrimination and not to discrimination against sexual orientation...If the European Union is to prescribe discrimination on the grounds of sexual orientation that must be achieved by a specific Directive and not by an extended construction of the 1976 Directive".
The Smith case was decided before the European Court of Justice decision in P v S and Cornwall County Council [1996] IRLR 347 ECJ which we reported in Issue 1 of LELR (see: Brink of a breakthrough?). In P v S the ECJ said it was a breach of the Equal Treatment Directive to discriminate against a male to female transsexual for a reason related to change of sex or gender reassignment.
We commented in Issue 1 that logically the European Court decision should also apply to discrimination on grounds of sexuality. In Issue 3 we reported on the case of Grant v South West Trains Limited (see: Express track just the ticket) where the Industrial Tribunal at Southampton said that the decision in P v S "is at any rate persuasive authority for the proposition that discrimination on the grounds of sexual orientation is unlawful" and referred that question to the ECJ. This case will shortly be considered by the European Court.
It appears that the High Court share our view, and the view of the Southampton Tribunal, on the applicability of the case of P v S to discrimination on the grounds of sexual orientation. The Court said that after the case of P v S it was "scarcely possible to limit the application of the Directive to gender discrimination as was held in the Smith case".
In Mr Perkins' case, the High Court conclude that in its view the opinion of the Advocate General in P v S and the judgment of the ECJ "do afford Mr Perkins a significant prospect of success".
The Court explained its reasoning behind this conclusion commenting that if, as the Advocate General indicated in P v S, transsexuals right to sexual identity embraces the right to marry persons of the same sex; to allow discrimination against transsexuals on grounds of sexual orientation would undermine, if not totally defeat, the protection to which the ECJ ruled they were entitled.
The Court commented that the social policy reasoning of the Advocate General in P v S was equally applicable to gay workers and said "homosexual orientation is a reality today which the law must recognise and adjust to and it may well be thought appropriate that the fundamental principle of equality and the irrelevance of a person's sex and sexual identity demand that the Court be alert to afford protection to them and ensure that those of homosexual orientation are no longer disadvantaged in terms of employment".
In its judgment the High Court made several useful comments about the approach to construction of European Legislation which should be adopted by the UK Courts stressing that European law does not take on a static role. The concern of the ECJ was to ensure that the law reflects not outdated views but current values.
The Court also referred to Europe the questions of whether or not the ban on homosexuality was capable of being justified under the Directive and whether acts done for the purpose of ensuring the combat effectiveness of the Armed Forces fall outside the scope of the EC Treaty and therefore of the Directive.