Equality for Lesbians and Gay Men in the European Community Legal Order – ‘They Shall Be Male and Female’?
| Date | 01 September 2000 |
| Published date | 01 September 2000 |
| Author | Iris Canor |
| DOI | 10.1177/1023263X0000700304 |
| Subject Matter | Article |
Iris Canor *
Equality for Lesbians and Gay Men in the European
Community Legal Order - 'they shall be male and
female'? **
§1. Introduction
The history of the UK references to the European Court of Justice 1on questions
dealing with discrimination based on sexual orientation contradicts the image of the
European Court always leading the way and showing national courts the path. 2The
UK national courts offered the European Court ample opportunities to expand the reach
of European Community law, 3but the Court did not make use of them. 4
*Lecturer, Interdisciplinary Center, Herzliya and Adjunct Lecturer, Tel Aviv University.
** Genesis 6, 19. The whole passage reads: •And of every living thing of all flesh, two of every sort shalt
thou bring into the ark, to keep them alive with thee; they shall be male and female'.
1. Hereafter: the European Court or the Court.
2. As Claire Kilpatrick demonstrates albeit in another context, C. Kilpatrick, 'Community or
Communities of Courts in European Integration? Sex Equality Dialogues Between UK Courts and the
ECJ',
4
European
Law Journal(1998), 121, 140.
3. Case C-249/96Lisa Jacqueline Grantv.
South-West
Trains
Ltd [19981ECR 621, reference 10 the Court
by the Industrial Tribunal, Southampton. Ms. Grant claimed travel concessions for her female partner
from her employer, South-West Trains Ltd., according to the Staff Travel Facilities Privilege Ticket
Regulations; Case C-168/97 R. v.
Secretary
of Statefor
Defence,
ex pane Perkins[1997] Industrial
Relations Law Reports (hereafter: IRLR) 297, reference by the High Court (Queen's Bench Division).
Mr. Perkins challenged the Ministry
of
Defence's policy
of
dismissing all members of the armed
services who had a homosexual orientation.
The question why references concerning discrimination based on sexual orientation were generated
primarily from the UK is beyond the issues which this article will deal with, yet the fact that both cases
were supported by a gay rights campaigning group might shed some light on the matter. It should be
noted that one can also find active gay and lesbian interest groups at the European level (Equality for
Gays and Lesbians in the European Institutions (EGALITE)), see Agence Europe7400, 08.02.1999,
16. For a discussion on the role of strategic litigation in
Grant,
see M. Bell, 'Shifting Conceptions of
Sexual Discrimination at the Court
of
Justice: from P v S to Grant v SWT', 5
European
Law Journal
(1999), 63, 77.
7 MJ 3 (2000) 273
IEquality for Lesbians and Gay Men in the European Community Legal Order
The UK judges thought they knew how the European Court 'makes' law. They were
convinced they were familiar with the common use
of
teleological interpretation
of
broadly defined sex equality norms in order to strike down discrimination based on
sexual orientation. 5This was, viewed ex post, amisplaced optimism concerning the
European
Court's
activism," as recent decisions
of
the European Court seem to
indicate that the Court is moving towards using more narrow interpretative measures
and imposing less compelling standards on the Member States than it has done in earlier
decisions, while being more sensitive to the need to preserve Member States' capacity
to conduct their own public policies. 7
It might be that, despite this shift in the Court's position, the UK courts could have
thought that the favourable constellation which allowed for the constitutionalization
of
Community law in the past, was once again present and that the Court could continue
its hard task without getting involved in political fights. First, the Court enjoyed
extensive support from its national counterparts including, inter alia the UK courts. 8
Such support is often perceived as a decisive factor for the successful introduction of
4.( ... continued)
4. As mentioned by the national judge in
Perkins:
'... the Administrator of the European Court ofJustice
wrote a letter inquiring whether, in the light of the judgment in
Grant,
this Court wished to withdraw
the reference', R. v.
Secretary
of Statefor
Defence,
exparte Perkins(1998)2 CMLR 1116, 1119. The
judge concluded that: 'Albeit reluctantly I consider that I am bound to withdraw the reference in this
case', ibid., 1123.
5. As the national judge in Perkins, (1997) IRLR297, 303 has said: ' ... there must be a real prospect that
the European Court will take the further courageous step to extend protection to those of homosexual
orientation, if a courageous step is necessary to do so. I doubt, however, whether any courage is
necessary, for all that may be required is working out and applying in a constructive manner the
implications of the Advocate General's Opinion and the judgment in
Cornwall
[Case C-13/94 P v. S
and
Cornwall
Country
Council
[1996] ECR 2143]'. See also, P. Craig, 'Report on the United
Kingdom', in A. M. Slaughter et al, (eds.), The
European
Courtand National
Courts
-Doctrineand
Jurisprudence, Legal
Change
in Its
Context,
(Hart, 1998), 193, 220.
of homosexuals is in sharp contrast with the Court's bold teleological constructions in Case C-13/94
Cornwall,
concerning the rights of transsexuals, which had preceded Grantby less than two years. See
also N. Burrows, 'Sex and Sexuality in the European Court' , 14 International Journal
of
Comparative
LabourLaw and Industrial Relations (1998), 153; Annotated also by J. McInnes, 36
Common
Market
Law Review(1999), 1043.
7. R. Dehousse, The European Courtof
Justice.
ThePolitics
of
JudicialIntegration, (Macmillian, 1998),
148.
8. See
Perkins,
[1998] 2 CMLR 1116. This should not be treated lightly, given Golub's contention
according to which 'Britain has distinguished itself as a nation loathe to provide preliminary references
from national courts and therefore loathe to engage in judicial co-operation with the ECJ', J. Golub,
'The politics of Judicial Discretion: Rethinking tile Interaction between National Courts and tile
European Court ofJustice', 19 West
European
Politics
(1969), 360, 365. In this case the willingness
to cooperate can be deduced from the very fact that the UK courts were prepared to refer questions
to the European Court, given that on most other occasions the UK courts, while invoking the acte clair
doctrine, have declined to refer cases to Luxembourg whenever they feared that the European Court
might prefer an interpretation which would not be in the UK's interests; C. Harlow, 'The National
Legal Order and the Court of Justice: Some Reflections of the Case of the United Kingdom', 5Rivista
italiana di dirittopubblico
comunitario
(1995), 929.
274 7 MJ 3 (2000)
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