ECJ rules on discrimination based on sexual orientation

In February 1998, the European Court of Justice rejected a claim of sex discrimination by a female railway employee, whose lesbian partner was denied access to benefits open to partners of a different sex, on the basis that Community law currently does not cover discrimination based on sexual orientation.

The European Court of Justice (ECJ) in Luxembourg has ruled that the principle of equal pay and treatment between the sexes does not apply to homosexual couples. Although the new Amsterdam Treaty (EU9707135F), which is currently being ratified by the Member States, makes provision for the Council of Ministers unanimously to adopt measures to combat all forms of discrimination (including discrimination based on sexual orientation), the ECJ decided in this case that Community law does not cover discrimination based on sexual orientation.

This judgment was passed on 17 February 1998 in the case of Grant v South-West Trains Ltd(C-249/96). The case concerned a female employee of a British railway company, whose lesbian partner was refused free travel and travel concessions normally granted to an employee's partner or spouse of the opposite sex where a meaningful relationship has been established for over two years.

The ECJ rejected the plaintiff's claim of sex discrimination. Its rejection was on the grounds that such occupational benefits were refused both to male workers who are living with a partner of the same sex, as well as to female employees living with a female partner. It was therefore found that this rule does not constitute discrimination between the sexes, because it was applied equally to male and female employees.

In addition, the Court argued that the Community had not yet adopted any rules requiring a stable relationship between two partners of the same sex to be treated as equivalent to such a relationship between partners of opposite sexes. Despite cultural changes in the perception of homosexual couples, according to the Court, such relationships do not currently fall within the scope of the right to respect for family life guaranteed under theCouncil of Europe's European Convention for the Protection of Human Rights and Fundamental Freedoms.

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