The Application of the Comparator Approach by the CJEU in Gender Recognition Cases

In November 2020, the European Commission published its LGBTIQ Equality Strategy 2020-2025, committing to improving the recognition of trans and non-binary identities, and intersex people. For Leens van Kessel, LLB student at Utrecht University, the European protection of the human rights of transgender persons would benefit from a clearer application of what she dubs the ‘comparator approach’ in CJEU cases regarding discrimination on grounds of gender recognition.

The ‘Comparator Approach‘

Direct discrimination is established when a person is or would be treated less favourably than another person in a comparable situation, due to a certain irrelevant characteristic. If an applicant claims that direct discrimination has taken place, a comparator must be identified. That identification is what I call the ‘comparator approach’. The outcome of judgments in discrimination cases tends to depend largely on the choice of comparator, so the effective protection of an applicant’s rights depends greatly on choosing the best possible comparator. If the Commission wants to improve the recognition of trans identities, it is important that transgender persons are effectively protected from discrimination. Therefore, it is relevant to research whether the ‘comparator approach’ is applied carefully by the CJEU.  

Several scholars have critiqued the application of the comparator approach by courts. Schiek, Waddington, and Bell have argued that the choice of comparator tends to be arbitrary, and lacks a consistent rationale. They also critique the lack of transparency. Often, courts do not explicitly detail their application of the ‘comparator approach’, which makes it difficult to uncover why a certain comparator is identified. This is problematic, because the identification involves value judgements about which characteristics of the comparator are deemed relevant, according to Fredman. These issues pose a threat to the legal certainty of those that seek protection from discrimination. For the protection of trans identities, it is thus relevant to research whether they arise in CJEU cases regarding gender recognition. Therefore, several cases that combine notions of discrimination and gender recognition will be analysed in the following section.

Application of the Comparator Approach by the CJEU in Gender Recognition Cases

In the 1996 case P v S and Cornwall County Council(UK, England and Wales), applicant P was a transgender woman that was dismissed by her employer after she informed them that she intended to transition. The CJEU held that the scope of the Gender Employment Directive extended to discrimination arising from gender recognition. Therefore, P’s dismissal constituted unlawful discrimination.

The UK had argued there was no discrimination, because the employer would also have dismissed P if she had been a transgender man. Advocate-General Tesauro, on the other hand, argued that although P would possibly have been treated the same if she had been a transgender man,she would not have been dismissed if was a cisgender man. The Court followed Tesauro’s arguments and identified the comparator as a cisgender man. It only briefly mentioned the comparison, without detailing which elements are relevant for the outcome of its application of the ‘comparator approach’.

The 2006 case Richards v Secretary of State for Work and Pensions(UK, England and Wales), was also about a transgender woman. Her application for a retirement pension was denied, despite the fact that she was 60, which was the pension age for women in the UK. The CJEU held that because the applicant was treated less favourably than a cisgender woman, unlawful sex discrimination had occurred.

The Secretary of State for Work and Pensions had suggested a comparator similar to the one identified in P v S: a cisgender man. However, Advocate-General Jacobs argued that the Court’s reasoning in P v S could not be followed. Since men were only allowed a retirement pension at the age of 65 at the time of this case, comparing the applicant with a cisgender man would mean that there was no discrimination. Instead, Jacobs considered that Richards should be compared to a cisgender woman. The Court followed the Advocate-General’s argumentation, without offering any transparent arguments why a cisgender woman is the appropriate comparator.

In a third, more recent (2018) case MB v Secretary of State for Work and Pensions (UK, England and Wales), MB’s application for a retirement pension had been refused, because her preferred gender was not legally recognized, since she did not want to divorce her wife. The CJEU held that same-sex marriage fell outside of the scope of EU law. Access to retirement pensions, however, did not. Consequentially, rules that placed more requirements on transgender women than on cisgender women for the access to a retirement pension, constituted unlawful sex discrimination.

Advocate-General Bobek had argued that arguments in Richards surrounding comparability should be followed in MB: cisgender women and transgender women were comparable. The UK argued that the situation of a person who transitioned after marrying is not comparable to that of a cisgender married person. However, the Court held that marital status was not a relevant factor for granting a retirement pension. Somehow, the Court did include marital status in its identification of a comparator, by finding that the applicant, a person who transitioned after marrying, could be compared to a married cisgender person.

Arising Issues: Arbitrariness and Lack of Transparency

The case-law set out above amply demonstrates that identifying an appropriate comparator is important for a just legal response to discrimination claims. Therefore, it is relevant for the adequate protection of transgender identities that an appropriate comparator is identified in cases where the applicant claims to be discriminated against on grounds of gender identity. In this table, an overview of the comparators in the selected case-law is provided:

Although the applicant was a transgender woman in all three CJEU cases, the comparator was different for each of them. Since the identification of a certain comparator depends greatly on the context of a case, we cannot conclude here that the CJEU was necessarily mistaken in the choice of comparator. However, it can be argued that in some of the cases, the Court made arbitrary choices in the elements that were considered to be relevant for the identification of a comparator. In MB, for example, the Court held that marital status was not a relevant factor for granting a retirement pension, but still emphasized the applicant’s marital status in its choice of comparator. The importance of marital status seems arbitrary, since it was deemed irrelevant to the case. Reliance on arbitrary elements explains the diverging outcomes of the ‘comparator approach’ in cases where the applicants were relatively similar. This conclusion is in line with Schiek, Waddington and Bell’s argument that the comparator approach lacks a consistent rationale. The arbitrariness of choices might be explained by the absence of an analytical framework containing criteria according to which a comparator should be identified.

Another issue is the lack of transparency surrounding the ‘comparator approach’. In two out of three cases, P v S and Richards, it is difficult to determine why a certain comparator is identified. The CJEU barely explains the identification of the comparator. This lack of transparency by the Court is problematic, because the choice of comparator influences the outcome of a case. The value judgements that were made surrounding the characteristics of the applicant and comparator that were deemed relevant, remain vague, which poses a threat to the legal certainty of applicants. In MB, the issue of a lack of transparency was avoided. The Court elaborately applied the comparator approach, mentioning all possible comparators and then selecting one. This shows that the lack of transparency can be solved by explicitly detailing the choices that are made during the application of the comparator approach. Explicitly deliberating on the elements that are relevant for the identification of a comparator also prevents the court from relying on arbitrary elements.

Protecting Trans Identities: Further Research into the ‘Comparator Approach’

This analysis of three CJEU gender recognition cases has shown that two problems arise with the application of the comparator approach by the Court in such cases. The first is that the Court tends to make arbitrary choices in deciding which elements are relevant for the identification of a comparator. The second refers to a lack of transparency, because the Court does not always explain why a comparator is appropriate. For the protection of transgender persons, it is necessary that more research is conducted into the application of the comparator approach by the CJEU and its problems and possible solutions,. The recognition of trans identities, which is a key action proposed by the Commission in its LGBTIQ Equality Strategy 2020-2025, would benefit from more research into the application of the comparator approach in gender recognition cases.