1.2 Arms in hands: issues, approaches and structures
Part I will deliver an introduction of basic ideas and outline issues to be discussed in this thesis. In Part II, the author will give the whole picture of ECJ’s Dory decision and indicate the missing piece in the decision. Why ECJ in Dory brought to a standstill from its previous case law on application of Community law on organizations in the armed forces of Member States? The ECJ suggested in Dory that there is a distinction between national decisions concerning organizations in the armed forces and national choices of military organization for defense of their territory or of their essential interests. Is it really distinguishable between matters of military organization related to genuine decisions of national defense and those mere choices of employment policy? How to determine the so-called “primary and second choice” to organize and manage the national defense? It is crucial for application scope of Community law.

More important for application of EC sex equality law in the armed forces, Dory also remarked some issues ECJ avoided to deal with or failed to solve. First of all, Dory is concerned about the compulsory obligation served in the military. Secondly, the German national court referred the preliminary-ruling question to ECJ is whether or not the “male-only” conscription was contrary to Community law, as result of the military service delaying access to civil work or training. Does it discriminate men based on the ground of sex? In author’s opinion, Dory is a good chance for ECJ to redefine the notion of “discrimination” on the ground of “sex” within a collective angel or “group rights,” for example the sex role of women and men, lesbian and gay men.

This brings the author to the third point. As discussed above, no matter on conscription or employment, it is crucial to discover who can perform the job well in the workplace of the armed forces: the sex role argument in application of non-discrimination law. Does the sex role constitute a real difference between male and female military experience and can be put forward as an argument for legality of compulsory military service only for men in conjunction with only voluntary military service for women under the Second Equal Treatment Directive? How the sex role argument earns the position in application EC non-discrimination law?

Extension of the sex role argument to gay men in the military, does gay men have the right of access to posts in the armed forces and under the obligation of compulsory military service? Does limiting gay men voluntary access to compulsory military service constitute discrimination in Community law on sex equality? Actually the issue is exactly the same as to women in the military. It is about the application scope of Community law on sex equality in the military. As referred cases law of the European Court of Human Rights (hereinafter ECtHR) held that dismissal of gay men in the military just because they are “gay” violated the law. It is understandable for protection gay men since they are legally served as a worker in the armed forces. However, the case law of ECtHR just held that sexual orientation constituted part of private life protected under Article 8 the European Convention on Human Rights (hereinafter ECHR), and therefore the “outcome” of gay men in the military is also under the protection. How about the “income”? How to use experience with women in the military for gay men? These issues will be discussed in Parts III and IV respectively, and suggested that under cases law of gay men in the military under European Human Rights law and U.S. sexual discrimination jurisprudence, it is a desirable approach of applying global experiences to deal with issues of gay men in the military.

Under the argument of sex role of women and gay men, which should be taken into consideration seriously to scrutinize the governmental objectives (interests) and nexus between aims and means, the male-only conscription and ban of gay men in compulsory or voluntary military service constitute discrimination on the ground of sex and violate Community law on sex equality. In Part V, the author will briefly summarize the concluding remarks and suggest a two-tier scrutiny standard – which is in a embryonic form in cases law of ECJ and ECtHR application of the principle of proportionality –, to apply in Community law on sex equality. To sum, ideological sex roles or stereotypes should never be a legitimate aim and over-exclusive classification constitutes an illegal means to pursue the aims, neither necessarily nor properly.

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