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Publication - Dr Jule Mulder

    Dignity or Discrimination

    what paves the road towards equal recognition of same-sex couples in the European Union?

    Citation

    Mulder, J, 2018, ‘Dignity or Discrimination: what paves the road towards equal recognition of same-sex couples in the European Union?’. Journal of Social Welfare and Family Law, vol 40., pp. 129-144

    Abstract

    The article analyses possibilities for the Court of Justice of the EU to go beyond its current narrow approach towards same-sex couples’ rights within the EU non-discrimination law framework, considering comparative treatment of dignity-based argument and the alternative concept of indirect discrimination. It critically reviews the CJEU’s current approach exclusively focusing on direct discrimination and the comparator paradigm. By doing so, the Court has tolerated a situation of de facto discrimination and limited advancement of same-sex rights. The question is then whether the situation could be overcome if the CJEU would follow other courts and develop reasoning based on dignity to underpin the EU non-discrimination analysis with substantive meaning. The article rejects this proposition. Dignity is not suitable because it is both too wide and to narrow to ensure certainty and substantive protection within EU non-discrimination law. While the concept of dignity protects a minimum standard and can provide a floor of rights, non-discrimination law fosters equality by imposing procedural standards and challenging measures that effect groups differently. The concepts should thus not be conflated. Instead, a consistent and application of the concept of direct and indirect discrimination seems to more promising.

    Full details in the University publications repository