Gays abandoned: High Court u-turn on Royal navy discrimination

R v Secretary of State for Defence Ex Parte Perkins
High Court QBD
13 July 1998 - reported in IDS Brief 619

As a result of the Armed Forces' policy banning homosexuality Mr Perkins was discharged from the Royal Navy in 1995 when it became known that he was gay. He sought judicial review of the Navy's decision to dismiss him and claimed that the policy was unlawful under Article 2.1 of the Equal Treatment Directive as it amounted to discrimination on grounds of sex.

The Secretary of State for Defence defended the action by arguing that the Directive did not cover discrimination based on sexual orientation.

Following the European Court of Justice decision in P v S & Another - that the Equal Treatment Directive protects transsexuals - the High Court in the case of Perkins took the view that the ECJ might rule in his favour.

The court made a reference to the European Court of Justice to determine the question of whether or not the Equal Treatment Directive extended to discrimination based on sexual orientation.

Following the ECJ judgment in Grant v South West Trains Ltd 1998 ICR 449 that a refusal to grant travel concessions to an employee's lesbian partner did not amount to sex discrimination under the Equal Pay Directive, the High Court reconvened to consider whether or not to withdraw the reference to the ECJ.

The question before the court was whether Grant was determinative of the issue whether sexual orientation discrimination was sex discrimination for the purposes of the Equal Treatment Directive.

It was argued for Mr Perkins that the ruling on that point in Grant was not binding and that the decision in Grant was relevant only to the Equal Pay Directive and not to the Equal Treatment Directive.

It was also argued that Grant was inconsistent with the decision in P v S & Another and that, as the ECJ was not bound by its previous decision, it may find differently on the issue of sexual orientation discrimination in the case of Perkins.

Lightman J rejected all the above arguments and concluded that he had no option but to withdraw the reference to the ECJ despite his concerns about the policy in question. The Judge commented that the future of the policy must be uncertain and indicated that a further challenge to the policy may be possible in judicial review proceedings once the Human Rights Bill becomes law.