The ECJ's rulings on discrimination in the workplace on grounds of sex have excluded protection for homosexuals. Michael Jeremiah calls for legislation which covers all employees. Michael Jeremiah is a solicitor at Anthony Gold Lerman & Muirhead. Sex discrimination law is in a mess. The question "What does sex mean?" is now being asked of the European Court of Justice, in the context of employment law. And the Court does not appear to know the answer.
A series of cases in recent years has attempted to widen the interpretation of UK sex discrimination legislation to protect gay men and lesbians from discrimination on the grounds of their sexual orientation.
Until last month, the ECJ seemed to be on the brink of protecting gay and lesbian rights at work. But its decision in Lisa Grant v South West Trains 1998 appears to have closed the door on those claiming equality on grounds of sexual orientation. Parliament must now step in to outlaw discrimination on grounds of sexual orientation, and do so quickly.
Lisa Grant, a lesbian, argued before the ECJ that she was just as entitled to a contractual "perk" of free travel from her employers for herself and her female partner, as she would have been had she been a man with a female partner.
But the ECJ decided that the prohibition on discrimination in European and UK law "on grounds of sex" did not include discrimination on grounds of sexual orientation.
In the ECJ's view the clear purpose of existing European laws is to remove discrimination between men and women, and not between gay men and heterosexual women, or lesbians and heterosexual men.
However, the decision is inconsistent with an earlier ECJ decision in a case against Cornwall County Council in 1996. In that case the ECJ ruled that the dismissal of a male transsexual who announced his intention to have surgery to re-assign his gender as that of a woman was unlawful discrimination.
But if the sex discrimination laws can be construed so widely as to confer protection on a transsexual, why can they not protect a homosexual?
Advocate-General Tesauro pointed out on the transsexual case: "In addition to the man/woman dichotomy, there is a range of characteristics, behaviour and roles shared by men and women so that sex itself ought rather to be thought of as a continuum." That statement would appear to be both humane and accurate.
The pressing question for discrimination lawyers is whether the law can be construed to recognise "sex" as a continuum rather than as a dichotomy. The ECJ's current view seems to be that sex is neither a continuum nor a dichotomy, but a (rather arbitrary) trichotomy comprising heterosexual men, heterosexual women and transsexuals.
If Lisa Grant had undergone a sex change operation to become a man, it would seem to be the law that her employer would have had to give free travel to her female partner.
The English courts seem unlikely to challenge the ECJ's ruling in the Grant case.
But Laura Cox QC has recently argued before the Court of Appeal that English sex discrimination legislation drew its inspiration in part not from the European Equal Treatment Directive but from the US civil rights model. Unlike the ECJ, the US courts have developed their case law to include sexual orientation discrimination.
The Court of Appeal, therefore, has the option of ruling that UK sex discrimination laws are wider than EU laws, and do protect employees from discrimination on the grounds of sexual orientation.
Of course, the decision should not be left to the courts at all. Employment protection is a political question and should be resolved by Parliament. Tony Blair spoke out against sexual orientation discrimination while in opposition. He is now in a position to act.
If the Blair project to modernise the UK is to have political coherence, employees must be protected from all kinds of discrimination at work by laws, not voluntary codes of conduct.