Gender Identity and Sexual Orientation: Alternative Pathways in EU Equality Law

During the past fifteen years, EU equality law has expanded to provide some protection from discrimination related to gender identity and sexual orientation. In the light of subsequent legislation and caselaw, this Article examines the meaning of equality that is being elaborated with respect to these grounds. A range of interpretations can be applied to the idea of equality. Some entail little challenge to the general social order, in particular where equality is understood to mean formal equal treatment of individuals in comparable situations. In contrast, more radical readings of equality pose a challenge to established social conventions around gender or the family. This Article explores the role of courts (in particular) in determining which concept of equality should be applied. In the context of this analysis, a comparison is made with law in the United States, and the response of courts and legislators there to sexual orientation and gender identity discrimination.