Therefore the requirement for obtaining the concession depends upon the gender of both the employee and the cohabitee. It follows that the discrimination is based on sex, although not the specific sex of the employee concerned. It is unlawful discrimination. But the Advocate General says that if travel grants had been paid only to married partners then european law would not be broken. Family law issues fall outside the scope of the EC Treaty and the European Court of Justice cannot intervene.
Family law is for individual member states to decide.
So a gap in the law remains. As people of the same sex cannot legally marry in the UK the effect of benefits to only married partners has the same discriminatory effect against lesbians and gays. The Advocate General's view however is that this would not breach Article 119. The Advocate General was also asked to consider whether gender discrimination could be justified on moral grounds. Elmer reiterates the principle that there is no question of justification in direct sex discrimination cases therefore it cannot arise.