Beyond a joke

A boss can discriminate against gays but not transsexuals. That's not justice, says Michael Jeremiah
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The Independent Online
IT'S official: your employer can discriminate against you if you are gay or lesbian, but cannot do so if you are a transsexual. It all turns on what is meant by "sex".

Equal rights for transsexuals were established in the case of P v S and Cornwall county council in 1996. A male transsexual who announced his intention to have surgery to re-assign his gender as that of a woman was dismissed by his employer. The European Court of Justice decided this was unlawful sex discrimination: P was employed when he was a man, but dismissed for becoming a woman.

The decision appears to be the highwater mark of the Court's commitment to the principle of equality. The Advocate General stated that the principle of equality "requires no account to be taken of any discriminatory factors, principally sex, race, language and religion. What matters is that, in like situations, individuals should be treated alike".

If a non-discrimination law drafted to prevent discrimination as between men and women was capable of embracing transsexuals, it seemed a logical extension of the equality principle for the Court to take the law a short step further and extend the protection to gays and lesbians.

Regrettably, the European Court of Justice's decision in the Lisa Grant (v South West Trains) case this year has clarified the law on sex discrimination but at the expense of exposing that the law has failed to develop the principle of equality in line with changes in modern society.

Cherie Booth QC, representing Lisa Grant, a lesbian, argued that Ms Grant was as entitled to a contractual "perk" of free travel from her employers for herself and her female partner, as if she had been a man with a female partner.

The Court held that the prohibition on discrimination "on grounds of sex" was limited to discrimination for being a man or a woman (or a transsexual) but did not include discrimination on grounds of sexual orientation.

However unjust the consequences of the decision may seem, it appears to be technically correct in terms of the Court's role of interpreting the natural meaning of European legislation: in the ECJ's view the purpose of existing European laws is to make fairer the still unequal playing field as between men and women.

Nevertheless, the decision has come as a surprise to many lawyers who expected the Court to follow the approach it took in P v S and Cornwall County Council, applying the equality principle more widely, and not just as equality between men and women.

One can distinguish of course transsexuality from homosexuality. But one cannot discern in these two irreconcilable decisions of the Court any unifying legal principle, nor any consistent application of the principle of equality.

The bizarre consequence of the two cases is this: if Lisa Grant (or her partner) had undergone a sex change operation so as to become a man, her employer would have had to give free travel to her female partner. The Court was right to hint that the law should be changed by the politicians legislating for wider equality.

Those campaigning for equality should be under no illusions about the size of this task: the Treaty amendment will require a unanimous decision of the Council of Ministers. The campaign should also address itself to the economic principles of the EU: free trade and the creation of a single market. Discrimination in employment is anti-competitive and distorts the market. Employees should be hired on merit only.

Britain already makes it unlawful to discriminate on grounds of disability, race or sex. Mr Blair should urge European leaders to outlaw all discrimination which undermines the dignity of the individual, and put himself at the forefront of the campaign for merit-based equal employment rights. His wife did.

Michael Jeremiah is a solicitor specialising in employment at Anthony Gold Lerman & Muirhead