Grant v South West Trains Ltd European Court of Justice Case C-249/96 - 17/2/98
The European Court of Justice dashed the hopes of lesbian and gay rights supporters by ruling that discrimination based on sexual orientation is not prohibited by Article 119 of the Treaty of Rome or the Equal Pay Directive. The court, unusually, refused to follow the opinion of the Advocate General (see Issue 15 of LELR, Granting rights to lesbians and gays).

 

Lisa Grant's employer, South West Trains, provided a travel subsidy scheme available to employees and their married or common law spouse. Ms Grant's partner is female and despite Ms Grant's statutory declaration that they had been in a meaningful relationship for more than two years, as required for unmarried spouses, Ms Grant's partner was denied access to the travel subsidy scheme.

The ECJ asked itself three questions.

First, whether the terms of the travel subsidy scheme constitute discrimination based directly on the sex of the worker. The court concluded that because the requirements of co-habitation with an opposite sex partner discriminated against lesbians and gay men equally there was no discrimination on the grounds of sex. This argument echoes back to the employer's unsuccessful argument in P v S (see Issue 1 of LELR, Brink of a breakthrough?) that there was no sex discrimination where a male to female transsexual was dismissed because the employers would have also dismissed a female to male transsexual.

Secondly, whether community law requires that stable relationships between two persons of the same sex should be regarded by all employers as equivalent to marriages or stable relationships outside marriage between two persons of opposite sex.

The court concluded that at the moment the community has not adopted rules providing for such equivalence.

The third and fundamental question addressed by the court is whether discrimination based on sexual orientation constitutes discrimination based on the sex of the worker. The court concludes not.

Ms Grant submitted that it followed from the case of P v S that differences of treatment based on sexual orientation are included in the discrimination prohibited by Article 119 of the Treaty. In P v S the ECJ had held that the provisions of european equality legislation prohibiting discrimination between men and women were simply the expression in their limited field of application of the principle of equality which is one of the fundamental principles of community law.

In P v S the court considered that circumstance argued against a restrictive interpretation of the scope of those provisions and in favour of applying them to discrimination based on the worker's gender reassignment. The court considered that such discrimination was in fact based essentially, if not exclusively, on the sex of the person concerned.

In P v S the ECJ held that the appropriate comparison in a transsexual case was with a person of the sex to which she belonged before undergoing the sex change. P's treatment, therefore, was to be compared with that of a non-transsexual man rather than a female to male transsexual.

This led to the logical belief that this reasoning would apply to sexual orientation discrimination but the European Court in Grant declined to follow that reasoning with no explanation.

They simply say the reasoning is limited to cases of the worker's gender reassignment and does not apply to differences of treatment based on a person's sexual orientation. There is no explanation, reasoning or clue given for this finding and one can only guess at the court's thinking. The effect of the Grant decision is that discrimination on grounds of sexual orientation in employment is not unlawful.

However, as the court observed the Treaty of Amsterdam amending the Treaty on European Union signed on 2 October 1997 provides for the insertion into the Treaty of Rome of a new Article 6a which, once the Treaty of Amsterdam has entered into force, will allow the Council of Ministers to take appropriate action to eliminate discrimination based on sexual orientation. Such action by the Council would require a unanimous vote on a proposal from the Commission after consulting the European Parliament.