Another Failed Chance For The Effective Protection Of Lgb Rights Nether Eu Law: Dr David. L. Parris V. Trinity College Dublin In Addition To Others

Dr Alina Tryfonidou, Associate Professor inwards European Union Law, University of Reading

Introduction

The recent judgment inwards the Parris instance is some other failed chance for the ECJ to offering effective protection to LGB persons as well as same-sex couples nether European Union law. Despite some signs inwards recent cases (Asociaţia Accept as well as Hay) that the European Union Court has been taking its role equally protector of the rights of LGB persons nether European Union police to a greater extent than seriously, inwards its judgment inwards Parris, similar inwards its conclusion inwards Léger (discussed here) which was the lastly instance involving LGB persons that was decided prior to Parris, the Court seems to live treading cautiously around matters that are fragile from the quest of catch of the Member States. In particular, inwards this case, the Court seems wary of the danger of existence accused of imposing its ain views alongside regards to a affair for which in that place is – silent – peachy multifariousness of sentiment amid the Member States, namely, the recognition of same-sex relationships. The judgment, also, demonstrates the ECJ’s failure to guide hold the reality of multiple discrimination, equally it was ruled that if a mensurate does non give rising to discrimination on whatever of the grounds prohibited yesteryear Directive 2000/78 – when these grounds are taken inwards isolation – as well as then it cannot live considered to make discrimination on the ground of the combination of those 2 factors.

Legal as well as Factual Background

The asking for a preliminary ruling inwards the Parris instance was referred yesteryear the Labour Court (Ireland) hearing an appeal from a conclusion of the Equality Tribunal (Ireland) inwards proceedings brought yesteryear Dr David L. Parris – a retired academic – against Trinity College Dublin (his old employer), the Higher Education Authority (Ireland), the Department of Public Expenditure as well as Reform (Ireland) as well as the Department of Education as well as Skills (Ireland), contention that he had been discriminated against yesteryear the defendants yesteryear argue of his historic flow as well as sexual orientation. The proceedings concerned the refusal yesteryear Trinity College Dublin to guide hold Dr Parris’s asking that on his death, the survivor’s pension provided for yesteryear the occupational make goodness scheme of which he was a member, should live granted to his civil partner. The refusal was based on the fact that Dr Parris entered into a civil partnership alongside his virile somebody partner only later he had turned lx as well as the said occupational scheme provides that survivor’s pension is payable only if the claiming fellow member married or entered into a civil partnership before reaching the historic flow of 60. (Note that the civil partnership was entered into inwards the United Kingdom of Great Britain as well as Northern Ireland inwards 2009, i time Dr Parris was over 60, but was only recognised inwards Republic of Ireland from 2011 onwards, when the Irish Gaelic legislation regarding civil partnerships came into force).

In Ireland, civil partnerships tin only live entered into since Jan 2011, whilst spousal human relationship betwixt persons of the same sexual activity has been made available only since Nov 2015. In addition, the statute which gave same-sex couples the correct to larn into into a civil partnership, excluded the retrospective recognition of civil partnerships registered inwards some other country, which meant that civil partnerships entered into abroad could live recognised inwards Republic of Ireland only prospectively, from Jan 2011. Thus, equally Dr Parris was born inwards 1946, he could only larn into into a civil partnership or conjoin his same-sex partner inwards Republic of Ireland later reaching the historic flow of 60; and, similarly, whatever civil partnership he had entered into inwards some other country, could only live recognised inwards Republic of Ireland later he had reached the historic flow of 60.

This meant that nether no circumstances would a somebody who had Dr Parris’s sexual orientation as well as historic flow live able to claim a survivor’s make goodness for his (same-sex) civil partner or husband nether the contested pension scheme. Or, to lay the number to a greater extent than broadly, LGB persons born before 1 Jan 1951 are excluded inwards all instances from claiming a survivor’s make goodness for their same-sex civil partner or husband nether the contested pension scheme.

The principal inquiry of the referring courtroom was whether the application of a dominion inwards an occupational make goodness scheme specifying an historic flow yesteryear which its members must conjoin or larn into into a civil partnership for their husband or civil partner to live entitled to a survivor’s pension, amounts to discrimination on grounds of historic flow and/or sexual orientation, opposite to Directive 2000/78.

The AG Opinion

In her Opinion, Advocate General Kokott firstly noted that the contested dominion does non amount to direct discrimination on the the world of sexual orientation, equally ‘[t]he mere fact that an employee has non married or entered into a civil partnership before his 60th birthday – whether on business organisation human relationship of legal barriers or yesteryear alternative – is non direct linked to his sexual orientation … Had Dr Parris married a adult woman later his 60th birthday, for example, she would guide hold been excluded from eligibility for the survivor’s pension inwards precisely the same way equally his electrical current partner nether the damage applicable to that pension’. The Advocate General as well as then pointed out that the dominion does, however, amount to indirect discrimination on the the world of sexual orientation since ‘the 60-year historic flow boundary affects a large number of homosexual employees inwards Republic of Ireland to a greater extent than severely as well as to a greater extent than deleteriously than their heterosexual colleagues … all homosexual employees inwards Republic of Ireland who were born before 1951 were universally barred from entering into a civil partnership inwards proficient fourth dimension before their 60th birthday because the establishment of civil partnership did non be inwards that Member State until 2011 as well as the best alternative previously available to same-sex couples was to alive together equally “common-law” partners. It was thus impossible for legal reasons for that grouping of people to secure a survivor’s pension for their respective partners nether the occupational pension scheme at number as well as thus to render the latter alongside a cast of social protection that their heterosexual colleagues as well as their spouses were able to convey for granted’. The Advocate General also found that in that place was (unjustified) direct discrimination on the the world of historic flow equally ‘employees who make non larn into into a spousal human relationship or civil partnership until later they guide hold reached their 60th birthday are treated less favourably than employees who make so at a younger age’.

Despite the fact that the Advocate General found that the contested dominion tin amount to discrimination on the grounds of sexual orientation as well as historic flow taken separately, her preferred approach was to consider that the dominion is discriminatory on the combined grounds of sexual orientation as well as age: ‘In the introduce case, item attending volition guide hold to live given to the fact that whatever discrimination perpetrated against the somebody concerned is attributable to a combination of 2 factors, historic flow as well as sexual orientation. The Court’s judgment volition reverberate existent life only if it duly analyses the combination of those 2 factors, rather than considering each of the factors of historic flow as well as sexual orientation inwards isolation.’ The Advocate General explained that ‘employees such equally Dr Parris would, inwards accordance alongside Article 2(2)(b) of Directive 2000/78, guide hold to live regarded equally existence at a item disadvantage yesteryear argue of a combination of their sexual orientation as well as their historic flow because the damage of the pension scheme guide hold the effect of systematically depriving their surviving partners inwards item of a survivor’s pension. It is truthful that, for all employees, the surviving partner’s eligibility for a survivor’s pension is discipline to the (apparently neutral) status that the distich must guide hold entered into a spousal human relationship or civil partnership before the employee’s 60th birthday. In truth, however, this systematically excludes homosexual employees born before 1951 inwards item – dissimilar all other categories of employee – from a survivor’s pension of this form because those employees would never guide hold been able to satisfy the aforementioned status fifty-fifty if they had wanted to’.

The Judgment

The Court inwards its judgment was of the catch that the contested dominion does non give rising to direct discrimination on the the world of sexual orientation because it does non refer direct to the worker’s sexual orientation. Unlike the Advocate General, however, the Court also found that the contested dominion did non give rising to indirect discrimination on this the world either.

The Court began yesteryear considering the argue behind Dr Parris’s failure to satisfy the contested rule:

‘on the engagement on which Mr Parris retired, 31 Dec 2010, he did non satisfy the atmospheric condition set downward yesteryear the applicable national dominion for his civil partner to live entitled to the survivor’s make goodness at number inwards the principal proceedings, since the civil partnership he had entered into inwards the Great Britain was non yet recognised inwards Ireland, as well as inwards whatever event, fifty-fifty if it had been recognised, it could non guide hold given an entitlement to such a benefit, equally it had been entered into later the member’s 60th birthday.’

‘the fact that Mr Parris is unable to satisfy that status is a consequence, first, of the province of the police existing inwards Republic of Ireland at the fourth dimension of his 60th birthday, inwards item the absence at that fourth dimension of a police recognising whatever cast of civil partnership of a same-sex couple, and, secondly, of the absence, inwards the rules governing the survivor’s make goodness at number inwards the principal proceedings, of transitional provisions for homosexual members born before 1951’.

The Court as well as then – referring to Recital 22 of Directive 2000/78 – proceeded to highlight the deference it shows towards Member State laws regarding the regulation of marital status inwards their territory and, inwards particular, the legal recognition of same-sex relationships: these are matters alongside honor to which Member States guide hold maintained their total competence, and, thus, they tin regulate them inwards whichever way they choose, provided that when doing so they comply alongside their obligations nether European Union law. The Court as well as then explained that the ‘Member States are thus gratuitous to render or non render for spousal human relationship for persons of the same sex, or an alternative cast of legal recognition of their relationship, and, if they make so provide, to lay downward the engagement from which such a spousal human relationship or alternative cast is to guide hold effect’. From this, the Court concluded that ‘EU law, inwards item Directive 2000/78, did non require Republic of Ireland to render before 1 Jan 2011 for spousal human relationship or a cast of civil partnership for same-sex couples, nor to give retrospective effect to the Civil Partnership Act as well as the provisions adopted pursuant to that act, nor, equally regards the survivor’s make goodness at number inwards the principal proceedings, to lay downward transitional measures for same-sex couples inwards which the fellow member of the scheme had already reached the historic flow of lx on the engagement of entry into forcefulness of the act’. Accordingly, inwards the ECJ’s view, the contested dominion did non make indirect discrimination on grounds of sexual orientation.

The Court, however, found that the contested mensurate did works life a divergence inwards handling that was direct based on the standard of age: ‘such a dominion thus treats members who conjoin or larn into into a civil partnership later their 60th birthday less favourably than those who conjoin or larn into into a civil partnership before reaching the historic flow of 60’. This divergence inwards treatment, nonetheless, falls – according to the Court – inside the orbit of Article 6(2) of the Directive, equally it ‘fixes an historic flow for entitlement to an old historic flow benefit’ and, hence, it does non constitute discrimination on grounds of age.

The terminal number that the Court had to consider was that of multiple discrimination, i.e. whether the contested dominion was capable of creating discrimination equally a termination of the combined effect of sexual orientation as well as age, where that dominion does non constitute discrimination either on the the world of sexual orientation or on the the world of historic flow taken inwards isolation. The Court noted:

‘while discrimination may indeed live based on several of the grounds set out inwards Article 1 of Directive 2000/78, in that place is, however, no novel category of discrimination resulting from the combination of to a greater extent than than i of those grounds, such equally sexual orientation as well as age, that may live found to be where discrimination on the ground of those grounds taken inwards isolation has non been established.’

‘Consequently, where a national dominion creates neither discrimination on the the world of sexual orientation nor discrimination on the the world of age, that dominion cannot make discrimination on the ground of the combination of those 2 factors’.

Analysis

The judgment inwards the Parris instance confirms as well as farther highlights 2 trends that had already been prevalent inwards previous case-law: a) that the Court is reluctant to intervene inwards situations which touching on matters that autumn to live regulated alone at Member State level, peculiarly when such matters involve morality judgements for which in that place is peachy multifariousness of views amid the Member States as well as b) that the Court ignores the reality of multiple discrimination.

a) Sensitive Matters that Fall inside Exclusive Member State Competence

As seen earlier, Recital 22 of Directive 2000/78 played an of import role inwards the Court’s conclusion inwards the instance that the contested dominion did non amount to (indirect) discrimination on the the world of sexual orientation. The Recital provides that ‘[t]his Directive is without prejudice to national laws on marital status as well as the benefits theme thereon’. In relation to this, the Court inwards its judgment explained that the Member States are gratuitous to determine whether to opened upwardly spousal human relationship or registered partnerships to persons of the same sexual activity as well as if they make so to lay downward the engagement from which such a spousal human relationship or alternative cast is to guide hold effect. From this it concluded that the refusal of the survivor’s make goodness was – simply – a effect of the application of Irish Gaelic police concerning same-sex partnerships (and, inwards particular, the lack of a civil status for such partnerships at the relevant time), and, hence, respecting the competence of the Member States alongside regards to these matters, European Union police (and, inwards particular, Directive 2000/78) could non apply inwards club to require Republic of Ireland to ‘to render before 1 Jan 2011 for spousal human relationship or a cast of civil partnership for same-sex couples’.

This delineate of reasoning appears – alongside honor – to live erroneous. In areas similar this (i.e. legal recognition for same-sex relationships) which autumn to live regulated yesteryear Member States exclusively, the ECJ tin silent intervene inwards club to require the said legislation to live applied inwards a style which is compliant alongside European Union law. Hence, the application of Directive 2000/78 inwards this instance would require the removal of discrimination on the (combined) grounds of sexual orientation as well as historic flow – which, inwards my view, is the discrimination that was suffered on the facts of the instance – which could live achieved yesteryear an amendment of the dominion (most likely, the requirement would live to permit LGB persons born before 1951 to claim survivor’s make goodness for their same-sex partner fifty-fifty if they entered into a civil partnership or spousal human relationship later they turned 60), but it wouldn’t require Republic of Ireland to recognise such relationships retrospectively, yesteryear changing the engagement from which they guide hold effect (which is a affair that falls to live regulated alone yesteryear Ireland). In other words, Republic of Ireland would rest gratuitous to determine how to regulate same-sex relationships – equally required yesteryear Recital 22 of Directive 2000/78 – but would guide hold to require pension schemes etc which apply to such relationships to brand provision for the different legal province of affairs of persons that guide hold such relationships as well as to convey that into account, yesteryear providing for an exception to the dominion inwards situations where it is (legally) impossible to satisfy the historic flow status due to the police inwards Republic of Ireland (as opposed to the personal alternative of the couple), which only allowed the legal recognition of same-sex relationships later a sure date.

As noted yesteryear Advocate General Kokott inwards reply to the declaration of the defendants, the United Kingdom of Great Britain as well as Northern Ireland Government, as well as the Commission, that a finding of discrimination based on sexual orientation inwards this instance could guide hold the effect of conferring de facto retroactive effect on the establishment of civil partnership (which would travel against Recital 22 of Directive 2000/78), such a finding ‘does non inwards whatever way compel the Irish Gaelic State to alter the marital status of an employee such equally Dr Parris retroactively’ equally ‘Dr Parris as well as his partner are today recognised yesteryear the Irish Gaelic State equally living together equally a couple, as well as they are today claiming – prospective – occupational pension scheme benefits corresponding to their marital status equally it stands today. They are non inwards whatever way claiming a make goodness to which their marital status does non title them. They are sure non claiming such a make goodness retroactively. Nor are they seeking a retroactive alter to their marital status. Rather, they are simply defending themselves against a term contained inwards the occupational pension scheme at number – the 60-year historic flow boundary – which was set downward inwards the yesteryear but discriminates against them today.’

Accordingly, yesteryear hiding behind Recital 22, the Court seems to live avoiding to intervene inwards this case, inwards this way allowing Member States non just to regulate same-sex relationships as well as the consequences ensuing from entering them (which is, indeed, a affair that is wholly to live regulated at Member State level), but also to discriminate against LGB persons who – yesteryear virtue of a legal disability (i.e. their inability to larn into into a spousal human relationship or registered partnership inwards a sure Member State until a sure date) – are differently situated from heterosexual persons who had the (legal) alternative of entering into a spousal human relationship or registered partnership yesteryear the required age, but chose non to make so. This approach seems to live inwards delineate alongside the approach followed yesteryear the Court alongside regards to issues involving substitution societal choices. In particular, inwards relation to matters which involve deeply held national societal mores or values, the Court as well as the European Union legislature guide hold been rattling reserved inwards their approach as well as guide hold focused on respecting the sovereignty of the Member States, fifty-fifty to the extent of avoiding applying European Union police rigorously (e.g. Henn as well as Darby) or at all (e.g. Grogan). This nonetheless comes at a cost, this existence that the rights that individuals derive from European Union police are sacrificed at the altar of Member State sovereignty. Should in that place non live a requirement that the EU, which is a polity that values, inter alia, substitution human rights as well as equality, human activeness equally an external arbiter of the choices of the Member States alongside regards to these issues when these choices come upwardly into conflict alongside the rights that individuals derive from the Treaty as well as secondary legislation? In other words, should the European Union non come upwardly to the rescue of individuals that derive rights from European Union police as well as require the Member States to ‘think federal’ alongside regards to these matters, equally long equally the European Union does non impose its ain views inwards relation to them? It is non suggested hither that morality as well as value judgements should at i time live made at the European Union level; equally Weiler has noted, in that place should live ‘fundamental boundaries’ which are ‘designed to guarantee that inwards sure areas communities […] should live gratuitous to brand their ain social choices without interference from above’.[1] However, Member States should live aware that when regulating these matters they must convey into business organisation human relationship as well as cater for the rights that individuals relish nether European Union law, as well as if they make not, as well as then the ECJ or (in most instances) the national courts equally enforcers of European Union law, should intervene inwards club to ensure that Member States comply alongside their obligations nether European Union law. 

b) Multiple Discrimination

The other notable characteristic of the judgment inwards Parris is the Court’s limited rejection of the possibility that multiple discrimination tin live prohibited yesteryear Directive 2000/78. The Court had, already, been faced alongside a province of affairs involving discrimination on the combined grounds of sexual activity as well as sexual orientation inwards the Léger case, which was decided inwards 2015. Despite the fact that the Advocate General inwards that instance found that the contested mensurate did amount to such (multiple) discrimination, the Court inwards that instance simply brushed aside the matter, yesteryear focusing on the inquiry of whether the said mensurate amounted (simply) to discrimination on the the world of sexual orientation.

In this case, however, it was to a greater extent than hard for the Court to avoid the affair equally the possibility of multiple discrimination – inwards this instance on the combined grounds of sexual orientation as well as historic flow – was specifically mentioned yesteryear the referring courtroom as well as the 3rd inquiry referred was, exactly, focused on this issue. However, equally noted earlier, the Court explicitly pointed out that ‘where a national dominion creates neither discrimination on the the world of sexual orientation nor discrimination on the the world of age, that dominion cannot make discrimination on the ground of the combination of those 2 factors’, thus rejecting the possibility of a finding of multiple discrimination nether Directive 2000/78.

It is, indeed, truthful that multiple discrimination presents challenges that are non faced when an assessment of a unmarried the world of discrimination is made.

One such difficulty is that a multiple discrimination assessment contradicts the classic single-ground model of discrimination police analysis which requires the identification of a unmarried hypothetical comparator who must only guide hold a unmarried characteristic – the i that it is claimed that the discrimination complained of is based – that is different from the somebody that is treated worse. Yet, at the same time, an analysis which is – artificially – pushed to gibe this model yesteryear insisting on an seek of the divergence inwards handling yesteryear using a unmarried ground, may live incapable of accurately reflecting the province of affairs that pertains inwards a sure case. For instance, on the facts inwards Parris, it would live inaccurate to compare all LGB persons alongside all heterosexual persons; or all LGB persons who guide hold entered into a spousal human relationship or registered partnership alongside all heterosexual persons who guide hold done so too; or all persons born before 1951 alongside all persons born later 1951. It was only LGB persons who were born before 1951 that were treated worse than everyone else (i.e. LGB persons born later 1951 as well as heterosexual persons inwards general). Accordingly, the divergence inwards handling complained of was based on the combined grounds of sexual orientation as well as historic flow and, thus, the failure of the Court to discovery this misrepresents the reality of discrimination that was suffered on the facts of the instance as well as – at a broader score – contributes to the continued invisibility of the phenomenon of multiple discrimination.

Another difficulty alongside multiple discrimination as well as its prohibition nether European Union police is that in that place is a hierarchy inwards the protection from discrimination on diverse grounds (with race as well as ethnic beginning coming at the top, followed yesteryear sex, as well as and then yesteryear the Directive 2000/78 grounds) which way that it is hard to apply a unmarried analysis inwards a province of affairs where discrimination is suffered on to a greater extent than than i the world simultaneously. This, inwards fact, is the argue why legal advisors handling cases involving multiple discrimination unremarkably brand a strategic conclusion equally to which unmarried the world to choose, taking into business organisation human relationship the protection afforded inwards relation to that the world equally good equally what is possible as well as attainable on the facts of the case.

Yet, as well as despite the higher upwardly difficulties, it is of import that where in that place is multiple discrimination, that this is reflected inwards the Court’s analysis. This is because, equally noted yesteryear the Advocate General inwards Parris, a finding of multiple discrimination requires that a different approach to justifications is taken, equally ‘[t]he combination of 2 or to a greater extent than of the grounds for a divergence of handling referred to inwards Article 1 of Directive 2000/78 may also hateful that, inwards the context of the reconciliation of conflicting interests for the purposes of the proportionality test, the interests of the disadvantaged employees acquit greater weight, which increases the likelihood of undue prejudice to the persons concerned, thus infringing the requirements of proportionality sensu stricto’.

Despite the fact that the European Union legislature as well as the ECJ seem to ignore the reality of multiple discrimination, in that place guide hold already been calls yesteryear the European Union institutions to convey this cast of discrimination to a greater extent than seriously as well as to convey activeness inwards club to increment both the capacity to recognise as well as position occurrences of multiple discrimination as well as awareness of the require to fight them equally such. It is of import for the institutions, bodies as well as courts, that apply anti-discrimination police to travel aware as well as able to position the unique ways inwards which individuals sense multiple discrimination (see, for instance, Report commissioned yesteryear the European Commission ‘Tackling Multiple Discrimination: Practices, policies as well as laws’ (2007) available at http://ec.europa.eu/social/main.jsp?catId=738&pubId=51). Accordingly, the ECJ should convey the chance – when it arises i time again – to dominion that European Union anti-discrimination police prohibits non just single-ground but also multiple discrimination as well as to render guidance equally to how to bargain alongside cases of such discrimination. After all – equally stressed yesteryear the Advocate General inwards Parris – ‘it is apparent at several points inwards the Directive [i.e. Directive 2000/78] that its authors were acutely aware of this number [i.e. multiple discrimination] as well as assumed that it could live adequately resolved yesteryear recourse to the instruments provided yesteryear the Directive’.

Further Reading

N. Bamforth, M. Malik as well as C. O’Cinneide, Discrimination Law: Theory as well as Context (Sweet & Maxwell, 2008), Chapter 9

K. Lenaerts, ‘Federalism as well as the Rule of Law: Perspectives from the European Court of Justice’ (2011) 33 Fordham International Law Journal 1338

A. Tryfonidou, ‘The Federal Implications of the Transformation of the Market Freedoms into Sources of Rights for the Union Citizen’ inwards D. Kochenov (ed.), Citizenship as well as Federalism inwards Europe (Cambridge, CUP, 2016, forthcoming)

A. Tryfonidou, ‘Discrimination on the Grounds of Sexual Orientation as well as Gender Identity’ inwards S. Vogenauer as well as S. Weatherill (eds), General Principles of Law: European as well as Comparative Perspectives (Oxford, Hart, 2017, forthcoming)

Report: ‘Tackling Multiple Discrimination: Practices, policies as well as laws’ (2007) available at http://ec.europa.eu/social/main.jsp?catId=738&pubId=51

Report yesteryear S. Fredman, ‘Intersectional discrimination inwards European Union gender equality as well as non-discrimination law’ (May 2016), available at http://ohrh.law.ox.ac.uk/new-report-intersectional-discrimination-in-eu-gender-equality-and-non-discrimination-by-professor-fredman/

Barnard & Peers: chapter 20

Photo credit: cbc.ca

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[1] J. H. H. Weiler, ‘Fundamental Rights as well as Fundamental Boundaries: On the Conflict of Standards as well as Values inwards the Protection of Human Rights inwards the European Legal Space’, inwards J. H. H. Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ And Other Essays on European Integration (Cambridge: Cambridge University Press, 2005), pp. 103–104. 

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