C-249/96

GRANT v SOUTH-WEST TRAINS

OPINION OF ADVOCATE GENERAL ELMER delivered on 30 September 1997

1. Does a provision in an employer's pay dependents will also be granted travel con- regulations according to which the employee cessions. Travel concessions are granted at is to be granted a pay benefit in the form of the discretion of [the employer] and will be travel concessions for a cohabitee of the withdrawn in the event of their misuse.' opposite gender to the employee, but is denied such concessions for a cohabitee of the same gender as the employee, constitute gender discrimination in breach of Article 119 of the EC Treaty? 3. Those travel concessions are further regu- lated in the Staff Travel Facilities Privilege Ticket Regulations (hereinafter 'the Ticket Regulations'), issued by the British Railways The case before the national court and the Board and adopted by South-West Trains questions referred for a preliminary ruling after privatisation. Clause 8 of the Ticket Regulations, entitled ‘Spouses', provides inter alia:

2. O n 4 June 1993 Lisa Grant was engaged as a clerical officer by the British Railways ‘Privilege tickets are granted for one com- Board. O n 31 March 1995 the employment mon law opposite sex spouse of staff ... sub- relationship was transferred to South-West ject to a statutory declaration being made Trains, a wholly-owned subsidiary, which that a meaningful relationship has existed for was privatised on 4 February 1996. Clause 18 a period of two years or more ...' of her contract of employment, entided ‘Travel facilities', states:

6. O n 9 January 1995 Lisa Grant similarly '1. Is it (subject to (6) below) contrary to applied for travel concessions for her female the principle of equal pay for men and cohabitee, Jillian Percey, at the same time women established by Article 119 of the making a declaration that she lived together Treaty establishing the European Com- with 'the individual described as my com- munity and by Article 1 of Council mon law spouse on my application for con- Directive 75/117 for an employee to be cessionary travel facilities in a "Common law refused travel concessions for an unmar- relationship" and that I have so lived for a ried cohabiting same-sex partner where continuous period of two years or more ...'. such concessions are available for Lisa Grant's application was rejected on the spouses or unmarried opposite-sex ground that, under Clause 8 of the Ticket cohabiting partners of such an Regulations, travel concessions were not employee? granted for cohabitees of the same sex.

7. Lisa Grant then brought a case against 2. For the purposes of Article 119 does South-West Trains before the Industrial Tri- "discrimination based on sex" include bunal, Southampton, United Kingdom, discrimination based on the employee's claiming that Article 119 of the EC Treaty sexual orientation?

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3. For the purposes of Article 119, does bers of their family should be treated as pay "discrimination based on sex" include within the meaning of Article 119 of the EC discrimination based on the sex of that Treaty. employee's partner?

4. If the answer to Question (1) is yes, does an employee, to whom such con- 10. Council Directive 75/117/EEC of 10 cessions are refused, enjoy a directly February 1975 on the approximation of the enforceable Community right against laws of the Member States relating to the his employer? application of the principle of equal pay for men and women, 2which on certain points clarifies the content of Article 119 of the Treaty, 3 has no independent significance 5. Is such a refusal contrary to the provi- where a pay benefit falling within the scope sions of Council Directive 76/207? of Article 119 is involved. Directive 75/117 is therefore not relevant to this case. 4

‘Moreover, as the Court has repeatedly held, the right not to be discriminated against on General remarks concerning gender dis- grounds of sex is one of the fundamental crimination human rights whose observance the Court has a duty to ensure (paragraph 19).

Accordingly, the scope of the directive can- not be confined simply to discrimination based on the fact that a person is of one or 13. In its judgment of 30 April 1996 in Case other sex. In view of its purpose and the C-13/94 P v S and Cornwall County Coun- nature of the rights which it seeks to safe- cil 6(hereinafter ‘P v S’), the Court had an guard, the scope of the directive is also such opportunity to give a ruling that dealt more as to apply to discrimination arising, as in fundamentally with the scope of the Com- this case, from the gender reassignment of munity rules prohibiting discrimination the person concerned (paragraph 20). based on sex. The case concerned an employee who was dismissed after informing his employer that he intended to undergo gender reassignment. The Court held that the dismissal constituted discrimination based on sex that was contrary to Directive 76/207. In paragraph 21 the Court attributed great weight to the fact that such discrimi- Such discrimination is based, essentially if nation was ‘based, essentially if not exclus- not exclusively, on the sex of the person con- ively, on the sex of the person concerned’. It cerned. Where a person is dismissed on the was therefore irrelevant as far as the Court ground that he or she intends to undergo, or was concerned that there was discrimination has undergone, gender reassignment, he or because of P's transsexuality. she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing 6 — [1996] ECR I-2143. gender reassignment (paragraph 21).

To tolerate such discrimination would be my view it is, in the same way as in the P v tantamount, as regards such a person, to a S case, appropriate to construe Article 119 of failure to respect the dignity and freedom to the Treaty as precluding forms of discrimi- which he or she is entitled, and which the nation against employees based exclusively, Court has a duty to safeguard (paragraph or essentially, on gender. The provision must 22).' further, in order to be effective, be under- stood as prohibiting discrimination against employees not solely on the basis of the employee's own gender but also on the basis of the gender of the employee's child, parent or other dependent. The provision must therefore also be regarded as precluding an employer from, for instance, denying a 15. In that judgment the Court, in my view, household allowance to an employee for took a decisive step away from an interpreta- sons under 18 living at home when such an tion of the principle of equal treatment based allowance in otherwise equivalent circum- on the traditional comparison between a stances was given for daughters living at female and a male employee. The Court thus home. Such a construction, which generally held that it did not matter that there was no attaches weight to the fact that gender is the reason to think that a woman who wished to factor giving rise to discrimination, would undergo gender reassignment would have also appear to accord with the formulation been treated more favourably than a man of Article 119, which in its first paragraph who wished to do so. I would refer in par- does indeed refer to the principle that men ticular to paragraph 20 of the judgment, and women should receive equal pay for where the Court refused to confine the prin- equal work, but in its third paragraph ciple of equal treatment simply to discrimi- expands on that principle by speaking more nation based on the fact that a person is of generally of 'equal pay without discrimi- one or other sex. The essential point was that nation based on sex'. Article 119 of the the discrimination was based exclusively, or Treaty must therefore be construed as cover- essentially, on gender. The Court thereby, in ing all cases where gender is objectively the my view, interpreted the Community prin- factor causing an employee to be paid less. ciple of equal treatment in a way that renders the principle appropriate for dealing with the cases of gender discrimination that come before the courts in present-day society.

scope of Article 119 must be kept free of in this case there is discrimination based, not conceptions of morality which may vary on sex, but rather on sexual orientation. from Member State to Member State and change with time. Only a purely objective assessment will ensure the clarity and fore- seeability which are of crucial significance for legal certainty. In P v S, conceptions of morality in connection with transsexuality were thus irrelevant to the Court's decision. The Court has thus confirmed that the Treaty cannot be interpreted on the basis of the moral conceptions of a Member State (in this respect see also Case C-159/90 Society for the Protection of Unborn Children v 20. Examination of the question whether, in Grogan). 7 this case, there is de jure gender discrimi- nation must start with a more detailed analy- sis of Clause 8 of the Ticket Regulations. Under that clause, an employee is entitled to travel concessions for a cohabitee of the opposite sex, but not for a cohabitee of the same sex. The issue is therefore whether the different treatment of the two cases, viewed objectively, is exclusively or essentially 18. In summary, I therefore consider that gender-based. Article 119 of the Treaty covers all cases where, on an objective assessment, there is de jure or de facto discrimination based exclusively or essentially on gender.

Is there gender discrimination in this case? 21. I would point out more generally that the travel concessions under the Ticket Regulations are in reality household benefits. Under Clauses 10 to 12 of the Ticket Regula- tions employees are entitled to travel conces- sions for children and close relatives main- tained by the employee and under those clauses the sexual orientation of the employ- 19. South-West Trains, the French Govern- ees or their relatives is irrelevant. If, there- ment and the United Kingdom contend that fore, Lisa Grant was maintaining a child or a mother or father, she would, regardless of her sexual orientation, have received travel 7 — [1991] ECR 1-4685. concessions for them.

25. The fact that Clause 8 of the Ticket Regulations does not refer to a specific sex as the criterion for discrimination, but lays down a more abstract criterion (‘opposite sex') can, in my view, make no difference, since the decisive point, as laid down in P v S 23. Clause 8 of the Ticket Regulations is whether discrimination is exclusively or makes the concessions conditional, however, essentially based on sex, whereas the fact that on the cohabitee's being of the ‘opposite sex' the discrimination is, de jure or de facto, on to the employee. The discrimination is there- the basis of a specific sex cannot be decisive. fore, under the objective content of the pro- vision, exclusively gender-based. Gender is simply the only decisive criterion in the pro- vision. If the rule had been gender-neutral so that the concessions were given, without dis- crimination, to all employees who submitted a declaration that for at least the last two years they had been living in a permanent relationship, Lisa Grant would have obtained 26. In the light of the foregoing, it is my the pay benefit in question which, according view that a provision in an employer's pay to her undisputed evidence, is worth regulations under which the employee is UK £1 000 per annum (corresponding to granted travel concessions for a cohabitee of E C U 1 500). Gender is thus, objectively, the the opposite sex to the employee but refused factor that leads to discrimination relating to such concessions for a cohabitee of the same pay against a particular group of employees. sex as the employee constitutes discrimi-

30. Clause 8 of the Ticket Regulations does not, however, refer to a concept which in English law confers a family law status, but 28. Had Clause 8 of the Ticket Regulations rather uses the expression 'common law specified, as the determinant criterion, that spouse'. However, neither in statute law nor the employee and the cohabitee must have common law does that expression have any contracted marriage, that would, in my opin- legal significance in England. English law has ion, have been a restriction on the travel con- put unmarried cohabitees on the same foot- cessions which was not contrary to Commu- ing as married couples only in limited cir- nity law, because it would be by reference to cumstances, for example under rent legisla- a family law concept, the content of which is tion, and here a more precise formulation is laid down by the Member States. used such as, for example 'a man and a woman who lived with each other as hus- band and wife'. Such provisions are assumed in general to require that the couple in ques- tion have shared finances, share a social life and have sexual relations, although the absence of the last is not decisive. 8 29. There would, nevertheless, have been a precondition that male and female employees and their spouses be treated in the same way. 8 — See, further, P. M. Bromley and N. V. Lowe, Family Law, If an employer, on the basis of his private 8th ed., p. 5 et seq.

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35. South-West Trains' reason for restricting 9 — Davis y Johnson [1979] AC 264, [1978] 1 All ER 1132, HL. employees' entitlement to travel concessions 10 — In English contract law the expression 'agency of cohabita- tion' is, moreover, used to mean that in certain circum- for cohabitees to entitlement for persons of stances cohabitation entitles a person to enter into certain legal transactions which will bind his or her cohabitee (See the opposite sex is, according to the evi- Cheshire, Fif oot Sc Furmston's Law of Contract, 13th ed., dence, its intention to benefit only persons p. 491 et seq.). Such entitlement is based on society's view of the permanency and character of the cohabitation, and who are married or living in a heterosexual therefore there does not seem to be anything, in principle, relationship, but not persons living in a to prevent cohabitees of the same sex from satisfying the conditions for an 'agency of cohabitation'. homosexual relationship, since cohabitation

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with a person of the same sex is not tradi- where discrimination is indirect does the tionally regarded as equivalent to a hetero- Court appear to accept the possibility that it sexual relationship. As the national court might be justified by reference to objective implies in its sixth question, consideration circumstances. 12 must be given to the question of whether gender discrimination can be justified on the basis of conceptions of morality.

38. In the present case gender discrimination 36. Lisa Grant submits that discrimination results directly from the legal criterion laid under Article 119 of the Treaty may only be down in Clause 8 of the Ticket Regulations, justified if it is on essential economic or and according to the Court's case-law such business grounds or is required by law. O n direct discrimination cannot be justified by the other hand, an employer cannot justify reference to objective circumstances. gender discrimination which is prohibited under the Treaty by reference to his private conception of morality, regardless of the fact that it might correspond to the prevalent conception of morality in the Member State in question.

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calculations relating to the value of contribu- and duties which result from the EC Treaty, tions paid in under certain forms of pension including the right not to be discriminated arrangements in relation to average life against on the basis of gender, should not expectancy for men and women. 13 apply to homosexuals, to the handicapped, to persons of a particular ethnic origin or to persons holding particular religious views. Equality before the law is a fundamental principle in every community governed by the rule of law and accordingly in the Com- 40. South-West Train's justification munity as well. The rights and duties which amounts, in reality, to nothing more than result from Community law apply to all saying that on the basis of its own private without discrimination and therefore also to conceptions of morality that employer the approximately 35 million citizens of the wishes to set aside a fundamental principle of Community, depending on the method of Community law in relation to some people calculation used, who are homosexual. 14 because it does not care for their life style.

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OPINION OF MR ELMER — CASE C-249/96

45. The Court held in the Defrenne judg- on the same footing as employees who have ment 15 that Article 119 of the Treaty is a cohabitee of the opposite gender and directly applicable if direct discrimination is accordingly receive travel concessions for involved, in other words discrimination that their cohabitee. can be ascertained by applying the criteria laid down in the provision. As an example, the Court mentions discrimination which has its origin in legislative provisions or in collective labour agreements, as well as dis- crimination in relation to pay, operating in one and the same private or public undertak- ing or service, inasmuch as such discrimi- nation can be detected on the basis of a purely legal analysis of the situation. 48. The answer to that question must there- fore, in my opinion, be that Article 119 of the Treaty is directly applicable and it is for the national courts to ensure that the disad- vantaged group of employees is treated in the same way as the favoured group.

46. In this case discrimination against employees whose cohabitees are of the same sex in relation to employees whose cohabi- tees are of the opposite sex can be detected in one and the same undertaking and one Temporal effect and the same set of regulations, namely South-West Trains and Clause 8 of the Ticket Regulations. The precondition for Article 119 having direct effect must, therefore, be satisfied.

(2) Such discrimination on the basis of gender cannot be justified by reference to the fact that the employer's intention is to confer benefits on heterosexual couples as opposed to homosexual couples.

(3) Article 119 of the EC Treaty is directly applicable and it is for the national courts to ensure that the disadvantaged group of employees is treated in the same way as the favoured group.

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