Confusion clouds ‘equality’ case

Date: 25/09/1997

By Leyla Linton

AN ADVOCATE-general at the European Court of Justice will next week deliver his opinion on a case which has embroiled EU governments and the Commission in a complex debate over the distinction between sex and sexual orientation discrimination.

The case centres on a lesbian rail employee's fight for travel concessions for her partner.

Lisa Grant took her employer South West Trains (SWT) to an industrial tribunal in the UK last year when it denied travel concessions to her long-term girlfriend. She claimed that its refusal contravened EU laws on equal pay for men and women.

The tribunal referred the matter to the ECJ, seeking to discover whether 'discrimination based on sex' included discrimination based on the employee's sexual orientation or discrimination based on the sex of the employee's partner.

Grant, represented by Cherie Booth QC, wife of British Prime Minister Tony Blair, maintained that the primary issue was one of sex discrimination, as a man in exactly the same circumstances would have been given the travel benefits. She also argued that 'sex' in the relevant EU treaty clause (Article 119) on equal pay should be understood broadly as encompassing 'sexual orientation'.

But SWT rejected this and argued that Grant was not a victim of sex discrimination. “Travel concessions are denied to same-sex partners whether they are male or female. Male homosexuals are thus treated no differently from female homosexuals,” said a spokesman.

It also said the difference in treatment at issue was based “not on the persons' sexual orientation but on the fact that they do not have the sort of relationship (marriage or common law marriage) which the company's regulations aim to encourage”.

SWT argued that same-sex relationships could not be seen as equivalent to marital relationships, which were centred on the family, a concept falling under the scope of member states' rather than EU law.

The European Commission said in its submission to the ECJ that Article 119 could include discrimination based on the employee's sexual orientation, but added that it would not be contrary to the principle of equal pay for men and women for an employee to be refused travel concessions where access to that benefit was based on notions deriving from the family law of the member state concerned.

The UK government argued that discrimination based on a person's sexual orientation should be distinguished from discrimination based on a person's sexual conduct, explaining: “While sexual orientation is usually not a matter of choice, a decision to engage in a relationship of a particular sexual character clearly is.”

London added that interpreting Article 119 as prohibiting discrimination based on sexual conduct would lead to “acute” difficulties in relation to employment, pensions and social security and have “far-reaching effects” for member states.

The advocate-general will give his opinion on the case next Tuesday (30 September), but the full Court is unlikely to deliver its verdict for several months.