Subject: EuroLetter 53
From: [email-masked]
Date: Tue, 30 Sep 1997 21:24:57 +0200 (METDST)

EURO-LETTER 

No. 53					    September 1997

THE EURO-LETTER IS PUBLISHED ON BEHALF OF ILGA-EUROPE - THE
EUROPEAN REGION OF THE INTERNATIONAL LESBIAN AND GAY ASSOCIATION
BY THE DANISH NATIONAL ASSOCIATION FOR GAYS AND LESBIANS IN
CO-OPERATION WITH  Gay and Lesbian International Lobby. 
Editors: Steffen Jensen, Ken Thomassen, Peter Bryld, Lisbeth
Andersen and Soeren Baatrup.  Contact to Euro-Letter: E-mail:
[email-masked] URL: http://www.inet.uni-c.dk/~steff Fax:
+45 2036 7856 Tel: +45 3324 6435 Mobile: +45 2033 0840 Mail: c/o
Steffen Jensen, Gl. Kongevej 31, 4.th, DK-1610 Copenhagen V,
Denmark  You can receive Euro-Letter by e-mail (send a message
to the above address)  and from no 30 onwards the Euro-Letters
are available on the Internet at 
http://www.france.qrd.org/assocs/ilga/euroletter.html
http://www.qrd.org/qrd/www/orgs/ILGA/euroletter  An Italian
translation of EuroLetters from no 47 can be found at
http://www.geocities.com/~pride/el.htm  You can find a link to
Euro-Letters at http://www.inet.uni-c.dk/~steff 

IN THIS ISSUE

LISA GRANT CASE
NEW LUXEMBOURG ANTI-DISCRIMINATION LAW LISTS "SEXUAL ORIENTATION"
SCANDINAVIA - ADOPTION RIGHTS FOR GAY COUPLES ON THE HORIZON
DUTCH LESBIAN ADOPTION REJECTED 
SAN MARINO REPEALS ANTI-HOMOSEXUAL LEGISLATION 
BRITAIN OKs GAY PARTNER IMMIGRATION
A MORE EFFICIENT COURT OF HUMAN RIGHTS

The ILGA-Europe EUAction Plan and other documents relating to
ILGA-Europe can be found at ILGA-Europe's homepage
http://inet.uni-c.dk/~steff/ilgaeur.htm

An update of the Survey on the Legal Situation for Gays and
Lesbians in Europe can be found at
http://inet.uni-c.dk/~steff/survey.htm

A description of partnership laws and other laws regarding
same-sex partners can be found at 
http://inet.uni-c.dk/~steff/partner.htm

LISA GRANT CASE
PRESS RELEASE No 58/97 30 SEPTEMBER 1997
[http://europa.eu.int/cj/en/cp/cp9758en.htm]

Opinion of Advocate General Michael B. Elmer in Case C-249/96
Lisa Jacqueline Grant v South-West Trains Ltd

AN EMPLOYER'S REFUSAL TO GRANT A PAY BENEFIT IN RESPECT OF A
COHABITEE OF THE SAME GENDER AS THE EMPLOYEE CONSTITUTES
DISCRIMINATION ON THE BASIS OF GENDER

Advocate General Michael B. Elmer recommended that the Court
should hold that a provision in an employer's pay regulations
under which an employee was granted pay benefit in the form of
travel concessions for a cohabitee of the opposite gender to the
employee, but refused such concessions for a cohabitee of the
same gender as the employee, constituted discrimination on the
basis of gender which is contrary to Article 119 of the EC
Treaty.

Background
Lisa Grant was an employee of South-West Trains whose contract
of employment included entitlement to certain free and reduced
rate travel concessions. Those concessions were also available
to spouses and dependents of employees. The relevant regulation
provides "Privilege tickets are granted for one common-law
opposite sex spouse of staff" provided that a meaningful
relationship has existed for a period of two years or more.

Mr Potter, who was Lisa Grant's predecessor in post, had in his
time made a statutuory declaration that a meaningful
relationship had existed between him and his female cohabitee
for a period of two years or more, and had on that basis
obtained travel concession for her.

Lisa Grant made a similar application for travel concessions for
her female cohabitee, Jillian Percey, with whom she had lived
for more than two years, but her application was rejected on the
ground that, under the ticket regulations, travel concessions
were not granted for cohabitees of the same sex.

Lisa Grant then brought a case against South-West Trains before
the Industrial Tribunal, Southampton claiming that the refusal
to grant those travel concessions for her female cohabitee
amounted to sex discrimination when a male employee in the same
circumstances would obtain travel concessions for his female
cohabitee. The Industrial Tribunal stayed the proceedings and
referred several questions to the Court of Justice on the
interpretation of Article 119 of the EC Treaty and of the equal pay and equal 
treatment directives.

The role of the Advocate General
The Advocate General, acting with complete independence and
impartiality, assists the Court by analysing the circumstances
and the legal issues arising in the case and makes a
recommendation to the Court on the answers which, in his view,
it should give to the questions submitted by the Industrial
Tribunal. His recommendation is not binding on the Court.

Advocate General Elmer's Opinion
The Advocate General first concluded that the questions referred
to the Court should be answered on the basis of Article 119 of
the EC Treaty and referred to the Court's judgment in case
C-13/94 P v S and Cornwall County Council [April 1996]
concerning an employee who had been dismissed after informing
his employer that he intended to undergo gender re-assignment.
In the Advocate General's view the Court had, in that judgment,
taken a decisive step away from an interpretation of the
principle of equal treatment based on the traditional comparison
between a female and a male employee.

The Court's judgement in P v S technically concerned the equal
treatment directive but, because of its general character, it
has corresponding significance for Article 119 of the EC Treaty
which sets out the basic principle prohibiting discrimination
based on sex. In order to give effect to that principle the
Advocate General stated that it was appropriate to interpret
Article 119 of the Treaty as precluding forms of discrimination
against employees based exclusively, or essentially, on gender.
He therefore concluded that Article 119 of the Treaty covered
all cases where, on an objective assessment, there was
discrimination based exclusively or essentially on gender.

He then examined the question of whether or not there was gender
discrimination in the present case and pointed out that the
ticket regulations made no mention of sexual orientation of the
employee or cohabitee, and that the question of sexual
orientation, under the objective content of that clause, is thus
irrelevant as far as entitlement to the concessions is concerned.

However, the regulations made the concessions conditional on the
cohabitees being of the "opposite sex" to the employee. The
discrimination is therefore, under the objective content of the
provision, exclusively gender based. Gender was simply the only
decisive criterion in the provision. Thus the grant of the pay
benefit in question depended upon the gender of the employee,
(inasmuch as employees must be of the opposite sex to their
cohabitees), and upon the gender of the cohabitee (inasmuch as
cohabitees mut be of the opposite sex to the employee). 

The Advocate General rejected the argument that that
discrimination was a consequence of the definition of "a common
law spouse" and was thus a family law issue which did not fall
under the EC Treaty, since neither in statute nor common law did
that expression have any legal significance in England. If the
expression 'common law spouses' referred exclusively to persons
of different sexes, there would be no reason to refer to a
'common law opposite sex spouse'. It was South-West Trains itself which 
introduced that restriction,leading to gender discrimination.

Accordingly, in this case, gender discrimination was not the
result of family law legislation in the Member State in question
and for that reason outside the scope of Community law.

He also found that the private conceptions of morality held by
the employer in question were irrelevant in this context,
whether or not they corresponded to those prevailing in the
United Kingdom. South-West Train's justification amounted, in
reality, to nothing more than saying that on the basis of its
own private conceptions of morality that employer wished to set
aside a fundamental principle of Community law in relation to
some people because it did not care for their life style.

Under the Treaty it is the rule of law in the Community that the
Court must safeguard; it is not its task to watch over questions
of morality either in the individual Member States or in the
Community, nor does it have any practical possibility of or
mandate for doing so.

The Advocate General emphasized that there is nothing in either
the EU Treaty or the EC Treaty to indicate that the rights and
duties which result from the EC Treaty, including the right not
to be discriminated against on the basis of gender, should not
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 Community as well. The rights and duties
which result from Community law apply to all without
discrimination and therefore also to the approximately 35
million citizens of the Community, depending on the method of
calculation used, who are homosexual.

Finally he re-affirmed that Article 119 of the EC Treaty could
be relied upon by individuals in national courts and that it was
therefore for national courts to ensure that the disadvantaged
group of employees was treated in the same wayas the favoured
group. 

This press release is an unofficial document solely for the use
of the press. It is available in English only. For further
information or for a copy of the Opinion please contact Tom
Kennedy, telephone 00352 4303 3355, or Gillian Byrne, telephone
00352 4303 3366 or send a fax to 00352 4303 2500.

NEW LUXEMBOURG ANTI-DISCRIMINA- TION LAW LISTS "SEXUAL
ORIENTATION" 
by Kurt Krickler

On the occasion of the European Year against Racism, the
Luxembourg Parliament voted on 17 June 1997, a Bill to "Fight
against Racism, Revisionism and other Discriminations". Articles
444 and 453 to 457 of the Luxembourg Penal Code provide now for
prison sentences from one month to two years and/or fines from
10.001 to 1 million Francs for incitement to hatred,
discrimination and violence or acts of discrimination against
physical persons, a community or corporate body based on "their
origin, colour, sex, SEXUAL ORIENTATION, family status, health
condition, disability, life-style, political or philosophical
convictions, trade union activities, their real or assumed
affiliation to a certain ethnic group, nation, race or religion.
The sentences provided will be higher by one third (3 months to
three years, fine up to 1,500,000 Francs) if the offence is
committed by a civil servant.

The French anti-discrimination provisions have served as a model
for this Bill. The new law punishes, among other things, the
refusal of goods or services, the advertising of such a refusal
to groups based on categories mentioned above, and the
obstruction of normal economic activity whatsoever. The new law
also concerns the labour market, e.g., the non-employment or
sacking of persons due to one of the above-mentioned reasons.

According to these new provisions, associations fighting against
racism or for the rights of the communities concerned will have
the right to institute proceedings even if individual(s)
concerned do not sue for discrimination.

The Bill was voted with great majority (47 votes in favour, no
vote against, ten abstentions). The law was signed by the
Grand-Duke of Luxemburg on 19 July and came into force, after
being published in the "Memorial", the official journal of the
Grand-Duchy, on 7 August 1997. 

SCANDINAVIA - ADOPTION RIGHTS FOR GAY COUPLES ON THE HORIZON
By Darren Spedale

According to the Swedish Newspaper Aftonbladet, as well as
representatives at the Swedish Gay organization RFSL, the Social
Democratic Party in Sweden voted at their September 13-14
general assembly to support the rights of gays and lesbians to
adopt children.

The Social Democrats are currently in control of the government
in Sweden and have approximately 45% of the seats in the
parliament.  This means that they are in a very good position to
pursue the issue and can most likely have their way.

The resolution, according to the article, was directed towards
the rights of gays and lesbians to adopt children not related to
either partner, which is to say children without an official
parent. 

According to a representative of RFSL, the Social Democrats'
resolution at the assembly basically stated that sexual
orientation should not be a hindrance to the right to adopt in
Sweden.  This would mean that gay couples would also have the
right to adopt children.  According to Mona Sahlin, the "point
woman" for the Social Democrats on family issues: "We
politicians can't choose who should have the right to be
parents.  Many homosexuals today have children."

The most likely outcome of this resolution will be the seating
of a parliamentary committee to look into the issue of gay
adoption. It is also hoped that the committee will look into
other issues involving parental rights for gays and lesbians,
including artificial insemination and stepchild adoption
(adoption of one partner's child by the non-biological partner.)
According to Mona Sahlin, as well as an RFSL representative,
such a report and its recommendations could be finished as early
as 1999, meaning that gay couples could have parental rights,
including adoption and artificial insemination, in just 2 years'
time.

Furthermore, the decision by the Social Democrats in Sweden will
put additional pressure on the other Nordic governments to
follow suit.  A long history of Nordic cooperation in the area
of family law means that Sweden's lead should open the doors to
gay and lesbian parental rights in its Nordic neighbors.  This
is especially true in Denmark, where the Social Democrats form
the largest governmental party, and the issue of gay and lesbian
parental rights has been debated for some time (although gay
couples recently faced a setback by the parliament's decision
this summer to prohibit lesbian insemination).

DUTCH LESBIAN ADOPTION REJECTED 
By Rex Wockner

Holland's Supreme Court Sept. 5 refused to allow a lesbian
couple to adopt each other's children, who were conceived via
artificial insemination.

The women, named in court as Van Ijzendoor and Louman, plan to
appeal to the European Court of Human Rights in Strasbourg.

"Our children are the victims in this affair," they said in a
statement. "In everyday life, they are brother and sister but
society does not grant them any rights which go with this."

The Netherlands is often considered the most gay-friendly nation
in the world.

Update on the story in EuroLetter 52:
SAN MARINO REPEALS ANTI-HOMOSEXUAL LEGISLATION 
by Helmut Graupner, Rechtskomitee LAMBDA, Vienna

On July, 9th the parliament of San Marino voted for the repeal
of Art. 274 of its Criminal Code. Under this article homosexual
contacts could be punished with imprisonment from 3 months up to
one year , if they have been engaged in "habitually" and thereby
caused "public scandal". A conviction under this law resulted in
loss of political rights and removal from public office for a
period from 9 months to 2 years.

28 MPs voted for the repeal, 21 against, one abstained.

Art. 274 CC has been introduced with the CC 1975, while the CC
1865 did not contain special provisions for homosexual behavior.
After the repeal the Criminal Law again treats homo- and
heterosexual contacts alike (as it did in the years 1865 to
1975).

The age of consent is equally set at 14 (Art. 173 CP; the same
as in Italy, see Euroletter 43, 11). Additionally (unlike in
Italy) it is an offence to "incite a minor under 18 years to
sexual corruption" (Art. 177 CC). This law (as similar laws in
various countries have been) could be a source for
discriminatory enforcement in the case of homosexual relations.

BRITAIN OKs GAY PARTNER IMMIGRATION
By Rex Wockner

Starting in October, foreign same-sex lovers of British citizens
will be welcome to settle in the United Kingdom, reported The
Times. Unmarried heterosexual partners will be allowed to
immigrate as well.

The change resulted from a Home Office review of immigration
law, the newspaper said.

Same-sex-partner immigration previously has required special
permission.

A MORE EFFICIENT COURT OF HUMAN RIGHTS
By Ken Thomassen

The European Court of Human Rights will soon become a more
accessible and efficient, according to a article by Andrew
Drzemczewski in the OSCE ODIHR bulletin vol. 5, no. 3.

The present part-time monitoring institutions, namely the
European Commission of Human Rights and the European Court of
Human Rights, will cease to exist. A new European Court of Human
Rights, operating on a full-time basis, will be established in
Strasbourg. The system will be streamlined and all applicants
will have direct access to the new court.

Revision of the Convention was necessitated by the increase in
the number of applicants, their growing complexity, and the
broadening of the Council of Europe's membership. The convention
was designed for 10 or 12 member States, and it is quite simply
impossible for the present monitoring arrangements to work
effectively with the expected 38 to 40 States Parties. Revision
of the monitoring machinery was therefore essential to
strengthen its efficiency. In brief, the new system should make
the machinery more accessible to individuals, accelerate the
procedure, and create greater efficiency.

Cases that are clearly without merit will be taken out of the
system at an early stage by a unanimous decision of the Court,
which will sit as a three-judge committee (the cases will
therefore be declared inadmissible). In the great majority of
cases, the court will sit as a seven-judge Chamber. Only in
exceptional cases will the Court, sitting as a Grand Chamber of
17 judges, decide on the most important issues. 

As under the present system, individual applications and
inter-State applications will exist side by side. The
application will subsequently be registered by a Chamber of the
Court and assigned to a judge-Rapporteur. The judge-Rapporteur
may refer the application to a three-judge committee, which may
include the judge-Rapporteur. The committee may, by a unanimous
decision, declare the application inadmissible; the decision
will be final.

When the judge-Rapporteur considers that the application raises
a question of principle and is not inadmissible, or when the
committee is not unanimous in rejecting the complaint, the
application will be examined by a chamber. A Chamber composed of
seven judges will decide on the merits of the application, and
if necessary, on its competence to adjudicate the case. The
Chamber will place itself at the parties' disposal, with a view
to friendly settlement. If not a friendly settlement can be
reached, the Chamber will deliver its judgement. 

Once the judgement has been delivered, the parties will have
three months to request that the case be referred to the Grand
Chamber. A panel of five judges of the Grand Chamber will
determine whether the request for a re-hearing is admissible.
The Chamber's judgement will become final when there is no
further possibility of a referral to the Grand Chamber. The
Grand Chamber's judgement will be final and binding in
international law. 

The new European Court of Human Rights will enter into force one
year after Protocol No. 11 to the European Convention on Human
Rights has been ratified by all States Parties to the
Convention. Of the 36 contracting States only Italy has not
ratified the protocol.

***************************
Steffen Jensen
E-mail: [email-masked] 
http://inet.uni2.dk/~steff
Tel. +45 3324 6435 or +45 2033 0840  Fax: +45 2036 7856