Sexual Orientation Discrimination after Grant v South‐West Trains

Published date01 September 2000
DOIhttp://doi.org/10.1111/1468-2230.00287
Date01 September 2000
Sexual Orientation Discrimination after
Grant vSouth-West Trains
Nicholas Bamforth*
In Grant vSouth-West Trains [1998] ECR I-621, the European Court of Justice
implied that, as a general matter, discrimination against an employee on the
ground of sexual orientation did not violate Article 141 EC. This article argues
that Grant rests on shaky foundations, in that it is conceptually inconsistent with
the Court’s earlier decision in PvS and Cornwall County Council [1996] ECR I-
2143. Furthermore, the scope of Grant has since been qualified by decisions of the
European Court of Human Rights – decisions which may well have undermined
the status of the case more broadly. However these difficulties are ultimately
resolved, the Court of Justice’s treatment of sexual orientation discrimination
exposes flaws in its approach as a self-proclaimed constitutional court.
The permissibility of employment discrimination against persons of lesbian,
bisexual or gay sexual orientation has recently been considered by both the
European Court of Justice and the European Court of Human Rights. In Grant v
South-West Trains,1the Court of Justice ruled that the denial of an employment-
related benefit to a lesbian employee did not violate Article 141 of the EC Treaty2
(concerning equal pay) and implied that as a general matter, instances of sexual
orientation discrimination would breach neither Article 141 nor the provisions of
Directive 76/207 on the Principle of Equal Treatment for Men and Women – leaving
cases of dismissal from employment potentially unremediable. By contrast, the
Court of Human Rights accepted in Smith vUnited Kingdom that the dismissal of
lesbian and gay military personnel because of their sexual orientation violated, inter
alia, the right to respect for private life protected by Article 8 of the European
Convention on Human Rights.3Smith has since been reinforced by the Court’s
decision in Da Silva Mouta vPortugal – albeit not an employment case – that sexual
orientation discrimination can violate Article 14 of the Convention, which prohibits
discrimination in the enjoyment of other Convention rights.4On a broader plane,
Grant is inconsistent in terms of result (although not reasoning, since the grounds for
decision were different) with the protections against sexual orientation
discrimination recently articulated by courts in Canada and South Africa.5
ßThe Modern Law Review Limited 2000 (MLR 63:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
694
* Queen’s College, Oxford. I should like to thank Catherine Barnard, Gra´inne de Bu
´rca, Angela Ward and
Robert Wintemute for their helpful comments. Responsibility for errors remains mine alone.
1 Case C-249/96, Grant vSouth-West Trains [1998] ECR I-621.
2Grant was litigated prior to the Article renumbering instituted by the Treaty of Amsterdam, so what is
now Article 141 was known as Article 119 throughout the case.
3 Applications nos. 33985/96 and 33986/96 (2000) 29 EHRR 493; see also applications nos. 31417/96
and 32377/96, Lustig-Preen and Beckett vUnited Kingdom (2000) 29 EHRR 548.
4 Application no. 33290/96; judgment 21st December 1999.
5 See Egan vCanada [1995] 2 SCR 513; Vriend vAlberta [1998] 1 SCR 1 (sexual orientation
discrimination prohibited as an ‘analogous ground’ of discrimination under section 15(1) of the
Canadian Charter of Rights and Freedoms); MvH(1999) 171 DLR (4th) 577; National Coalition for
Gay and Lesbian Equality vMinister of Justice 1999 (1) SA 6 (sexual orientation discrimination
prohibited as ‘unfair discrimination’ within the 1996 South African Constitution). See also the US
Supreme Court’s treatment of same-sex sexual harassment in Oncale vSundowner Offshore Services
(1998) 118 S Ct 998. In the UK, see the House of Lords’ approach to the interpretation of legislation
in Fitzpatrick vSterling Housing Association [1999] 4 All ER 705.
Since the only possible defendant before the Court of Human Rights is the state,
Smith appears at least to qualify Grant by protecting litigants against those
instances of employment-related sexual orientation discrimination for which
Convention signatory states can be held responsible.6This article, however, will go
further by suggesting that Grant is now directly open to challenge – for two
reasons. First, Grant rested on shaky foundations prior to Smith, in that the Court of
Justice’s decision appears to be inconsistent with its earlier ruling in PvS and
Cornwall County Council – where the dismissal of a transsexual employee who
was about to undergo gender reassignment was found to violate the Equal
Treatment Directive.7Advocate General Tesauro suggested in PvSthat the
Community law principle of equality meant that ‘connotations relating to sex and/
or sexual identity cannot be in any way relevant’ in assessing an employee’s
suitability for continued employment,8while the Court concluded that the
Directive’s scope could not be confined ‘simply to discrimination based on the
fact that a person is of one or other sex’.9The logical implication of both
statements was that if the equal treatment (and by implication, equal pay)
provisions were broad enough to prohibit discrimination against transsexuals as
unlawful sex discrimination, then discrimination against lesbians and gays could be
prohibited on the same basis.10 In terms of Community law, the decision to the
contrary in Grant has confusing implications for the definition of unlawful sex
discrimination, dilutes the Community law principles of respect for fundamental
rights and equality, and prompts concern about the Court’s ro
ˆle as the
Community’s constitutional adjudicator. The second reason is that since the Court
used a restrictive interpretation of Article 8 of the Convention to justify its
conclusion in Grant, the Court of Human Rights’ more generous interpretation of
Article 8 in Smith must undermine the reasoning and conclusion in Grant (a point
which, it will be argued, is consistent with Da Silva Mouta), even though Grant
appeared to raise the question of same-sex partnership rights whereas Smith did
not. In the first section of the article, the meaning of sexual orientation
discrimination will be explored, while relevant aspects of Grant will be
summarised in the second. The third and fourth sections will consider the
implications of Grant for the concept of sex discrimination and the principles of
respect for fundamental rights, equality and the rule of law. The fifth section will
consider the relationship between Grant and Smith.
6 Including via the principle of Drittwirkung or third party effect of certain Convention rights: see A.
Clapham, Human Rights in the Private Sphere (Oxford: Clarendon Press, 1993) chs 4, 7.
7 Case C-13/94, PvS and Cornwall County Council [1996] ECR I-2143.
8ibid A G Tesauro, para 19, emphasis added.
9ibid para 20.
10 This was certainly the implication drawn by domestic courts: in RvSecretary of State for Defence, ex
p Perkins [1997] IRLR 297, 303, Lightman J suggested that the policy reasoning which favoured the
legal protection of transsexuals from discrimination should also serve to protect lesbians and gay men,
that the protection accorded by PvSto persons undergoing gender reassignment would be made
hollow if they could still be discriminated against because of the sex of persons to whom they were
sexually attracted, and that EC law must adjust to today’s social realities in relation both to
transsexualism and lesbians and gays – making it ‘scarcely possible to limit the application of the
directive to gender discrimination’. See also R. Wintemute, ‘Recognising New Kinds of Direct Sex
Discrimination: Transsexualism, Sexual Orientation and Dress Codes’ (1997) 60 MLR 334, 350.
September 2000] Sexual Orientation Discrimination
ßThe Modern Law Review Limited 2000 695

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