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Grant v. South-West Trains, Ltd.

Published online by Cambridge University Press:  27 February 2017

Bernard H. Oxman  and
Laurence R. Helfer
Laurence R. Helfer
Affiliation:
Loyola Law School, Los Angeles
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Extract

Grant v. South-West Trains, Ltd. Case C-249/96. 1998 All England Law Reports (EC) 193.

Court of Justice of the European Communities, February 17, 1998.

Are employers within the European Community (EC or Community) forbidden from discriminating against their employees on the basis of sexual orientation? More generally, does the prohibition of “discrimination based on sex” contained in Article 119 of the Treaty of Rome and the Community directive requiring equal pay for men and women (Equal Pay Directive) encompass discrimination on the basis of sexual orientation? In Grant v. South-West Trains, Ltd., the European Court of Justice (ECJ) answered both questions in the negative, rejecting a strongly worded recommendation of the Court's Advocate General.

Type
International Decisions
Information
American Journal of International Law , Volume 93 , Issue 1 , January 1999 , pp. 200 - 205
Copyright
Copyright © American Society of International Law 1999

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References

1 Treaty Establishing the European Economic Community, Mar. 25, 1957, Art. 119, 298 UNTS 11; Council Directive 75/117 on the Approximation of the Laws of the Member States relating to the Application of the Principle of Equal Pay for Men and Women, 1975 O.J. (L 45) 19.

2 Opinion of Advocate General Michael B. Elmer (Sept. 30,1997), 1998 All E.R. (EC) 193 [hereinafter Elmer Opinion].

3 Case C-249/96, para. 5 [hereinafter Judgment].

4 Case C-13/94, [1996] 2 C.M.L.R. 247, 1996 All E.R. (EC) 397.

5 Council Directive 76/207 on the Implementation of the Principle of Equal Treatment for Men and Women as Regards Access to Employment, Vocational Training and Promotion, and Working Conditions, Art. 2(1), 1976 O.J. (L 39) 40 (“there shall be no discrimination whatsoever on the grounds of sex”).

6 Elmer Opinion, note 2 supra, paras. 15, 25, 35–43. See also id., para. 17 (“The delimitation of the scope of Article 119 must be kept free from conceptions of morality which may vary from Member State to Member State and change with time.”).

7 Judgment, paras. 27–28.

8 European Convention on Human Rights and Fundamental Freedoms, Nov. 4, 1950, Art. 8, 213 UNTS 222.

9 Judgment, paras. 29–36.

10 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171.

11 Toonen v. Australia, Communication No. 488/1992, UN GAOR, 49th Sess., Supp. No. 40, Vol. 2, at 226, UN Doc. A/49/40 (1994). Although its determinations are not formally binding, the Committee’s recent practice has been to treat its “views” as to whether the treaty has been violated as imposing an obligation on states to implement them. See Laurence R. Heifer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 Yale L.J. 273, 338–45 (1997).

12 Treaty of Amsterdam, Oct. 2, 1997, Art. 13 (amending Treaty on European Union, Art. 6a), reprinted in 37 ILM 56, 82 (1998).

13 Robert Wintemute, Recognizing New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes, 60 Mod. L. Rev. 334, 344 (1997). See also Andrew Koppelman, Why Discrimination against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 208 (1994).

14 Wintemute, note 13 supra, at 347–48.

15 See Andrew Koppelman, Three Arguments for Gay Rights, 95 Mich. L. Rev. 1636, 1661 (1997). Indeed, the ECJ’s view of neutrality is the same as that adopted by courts in 19th-century America to uphold antimiscege-nation laws. Id.

16 Case C-13/94, supra note 4, para. 7.

17 For a detailed discussion, see Koppelman, note 13 supra, at 234–72.

18 With respect to the ECJ’s interpretive methods, see Carlos A. Ball, The Making of a Transnational Capitalist Society: The Court of Justice, Social Policy, and Individual Rights under the European Community’s Legal Order, 37 Harv. Int’l L.J. 307, 340–42, 374 (1996); Philip Britton, The Rainbow Flag, European and English Law: New Developments on Sexuality and Equality, 8 Ind. Int’l & Comp. L. Rev. 261, 303–04 (1998).

19 In P v. S, the Advocate General stated that “in Community law there is no precise provision specifically and literally intended to regulate the problem” of workplace discrimination against transsexuals, and that the drafters’ “purpose” in enacting the Equal Treatment Directive was to bar “discrimination between men and women.” Case C-13/94, supra note 4, paras. 24, 21. Neither fact deterred the Court from relying on the Community’s fundamental “principle of equality” to extend the directive to bar adverse employment actions against transsexuals.

20 Wintemute, note 13 supra, at 352 (citing Dekker v. Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus, 1990 ECR 1–3941, as interpreting the Equal Treatment Directive to protect pregnant workers notwithstanding a pending proposal to adopt a specific directive on discrimination against pregnancy).

21 Wintemute, note 13 supra, at 351–52.

22 These minority groups do not currendy enjoy discrimination protection under EC law but, like lesbians and gay men, may be the subject of future Community legislation under the competence granted to the EC Council in the 1997 Treaty of Amsterdam.

23 See Homosexuality: A European Community Issue 71–178 (Kees Waaldijk & Andrew Clapham eds., 1993) (detailed studies of legal, social and economic discrimination against lesbians and gay men in the Community).

24 Three EC members (Denmark, the Netherlands, and Sweden) recognize same-sex partnerships or grant benefits to same-sex couples analogous to those granted unmarried heterosexuals. Eight (Denmark, Finland, France, Ireland, Luxembourg, the Netherlands, Spain and Sweden) bar sexual orientation discrimination in employment or the provision of public goods and services. In a 1994 resolution, the European Parliament urged member states to abolish all laws that discriminate against lesbians and gay men. Resolution on equal rights for homosexuals and lesbians in the European Community, 1994 O.J. (C 61) 40. In July 1997, the European Commission on Human Rights reversed two decades of setded jurisprudence and ruled that Britain’s 18-year age of consent for gay men, as compared to a 16-year age of consent for heterosexuals and lesbians, violated the prohibition under the European Convention on Human Rights of discrimination on the basis of “sex” and “other status.” Sutherland v. United Kingdom, App. No. 25186/94 <http://www.dhcommhr.coe.fr/eng/25186R31.E.html>.

25 Judgment, paras. 47, 36.

26 In The Netherlands v. Reed, 1986 ECR1283, 1300, the ECJ stated that it could give a “broad” or “dynamic” interpretation of Community legislation based on legal and social developments that “take into account the situation in the whole Community, not merely in one Member State.” In P v. S, Case C-13/94, note 4 supra, the Court acted notwithstanding the Advocate General’s conclusion that member states’ laws concerning rights of transsexuals were in flux. See also Andrew Clapham & J. H. H. Weiler, Lesbians and Gay Men in the European Community Legal Order, in Homosexuality, supra note 23, at 7, 37 (arguing that the ECJ can impose “more progressive standards than those common to all the Member States or contained in international instruments” when interpreting the principle of equality in EC law).

27 Regina v. Secretary of State for Defence ex parte Perkins, 2 C.M.L.R. 1116 (1998) (withdrawing reference to ECJ). At present, nine EC members do not bar gays from military service (Austria, Belgium, Denmark, Finland, France, Ireland, the Netherlands, Spain and Sweden). Wintemute, note 13 supra, at 352 n.79.

28 A challenge to a discriminatory policy of a Community institution itself may provide the most promising opportunity for such a claim. See Clapham & Weiler, note 26 supra, at 36–37. Although the EC Staff Regulation was recently amended to prohibit discrimination against Community employees on the basis of their sexual orientation, see 1998 O.J. (L 113) 4, the Community has refused to treat its employees’ same-sex partnership contracts as equivalent to marriage contracts for purposes of awarding a household allowance. A challenge to that policy, supported by the Swedish Government, was rejected by the EC Court of First Instance on January 28, 1999. D. v. Council, Case T-264/97 <http://http://curia.eu.int/en/index.htm>. It is uncertain whether the decision will be appealed to the ECJ.