Discrimination by association from the doctrine of the European Court of Justice to national courts. New challenges of the ¿new? forms of discrimination

Abstract

As in the development of the right to equality and non-discrimination, the Court of Justice has played an essential role in the recognition and subsequent evolution of discrimination by association. In 2008, the interpretative acrobatics of the Coleman judgment showed, among other things, that equality and non-discrimination is an inexhaustible right, which goes beyond existing moulds in the form of rigid legal categories. The doctrine of the European Court of Justice has led to a relevant activity of the national judicial doctrine, which has not stopped in the face of the scant and insufficient regulation of discrimination by association. At a slow but unstoppable pace, the Spanish courts have been identifying, making visible and giving legal status to a discriminatory figure that had managed to remain in legal anonymity. The transcendence of this jurisprudential construction is even greater in view of the multiple doors it opens and which, as happens with classic and timeless issues, lead in turn to new questions, which force us to reconfigure preconceived ideas in order to guarantee real protection against a discriminatory practice that has been anonymous until very recently, but which has always been present among us.