Johanna Westeson - The ICHRP

ground that the scheme did not cover surviving life partners. He claimed that he was
thereby discriminated against on the basis of his sexual orientation.
The Court found that the pension scheme was to be regarded as ‘pay’ in the terminology of
the relevant Directive, why the Directive was applicable. The preamble of the Directive
states that it is without prejudice to national laws on marital status and benefits that derive
from marital status, but, the Court reiterated, this does not exempt member states from
having to respect the principle of non-discrimination under EU law. The Court noted that
same-sex partners could not marry under German law. Instead, life partnership had been
established as a way for the state to recognize same-sex relationships, with significant
similarities to the institution of marriage. The Court ruled that when member states have
established a model for same-sex partnership, such that the situation of life partners is
comparable to that of spouses with regard to survivor’s benefits, less favourable treatment
of life partners than of spouses constitutes direct discrimination under the Directive. It was
for the national court to determine whether the situation of the applicant was comparable to
that of a legal spouse.
In several cases, the Court has examined the right not to be discriminated against on the
basis of gender identity – though this has been more narrowly framed as discrimination in
relation to gender reassignment. The important principle here is that the Court has
determined that gender identity/gender reassignment discrimination is included in the
notion of sex discrimination.
In P. v. S. and Cornwall County Council, 67 the central issue was whether dismissal because
of gender reassignment could be considered discrimination based on sex under Directive
76/207/EEC. 68 The applicant had decided to undergo gender reassignment and, upon
informing her employer of the decision, was dismissed from her work. She claimed that
this dismissal violated the Directive, whose article 5(1) prohibits discrimination on grounds
of sex with regard to working conditions, which includes dismissal.
The Court found that discrimination against a person for reasons related to gender
reassignment is covered by the Directive in question; dismissal of a transsexual for such
reason therefore violates the Directive. The most significant finding is that ‘sex,’ as read by
the relevant Directive, includes not only the traditional understanding of the two sexes but
also of situations arising from gender reassignment. Unfavorable treatment linked to
gender reassignment thereby effectively became a new ground for discrimination, as a
subcategory of discrimination on the basis of sex. The Court also made references to the
principle of equality as a fundamental principle of Community law and stated that the
relevant Directive is but an expression of said principle.
It is important to bear in mind that this decision only relates to issues linked to gender
reassignment (without specifying whether this includes non-surgical treatment or not), and
not to gender identity issues more broadly. The Court uses consistently the term
‘transsexual,’ suggesting that the scope of its findings is limited to a group of persons who
have undergone, or are in the process of undergoing, genital corrective surgery.
67 Case C-13/94, decided on 30 April 1996.
68 Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal
treatment for men and women as regards access to employment, vocational training and promotion, and
working conditions, OJ 1976 L 39, p. 40.
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