ECJ: UK discriminated against transgender woman denied pension at 60

The case concerned transgender woman MB, who was assigned male at birth in 1948, married a woman in 1974, began to live as a woman in 1991 and underwent sex reassignment surgery in 1995.

MB does not hold a full certificate of recognition of her change of gender because, under UK legislation, her marriage would have to be annulled in order for that certificate to be granted.

MB and her wife wish to remain married for religious reasons.

When MB reached the age of 60 in 2008 and applied for a retirement pension, her application was rejected on the ground that, in the absence of a full gender recognition certificate, she could not be treated as a woman for the purposes of determining her statutory pensionable age.

She challenged that decision before the UK courts and the Supreme Court eventually asked the ECJ whether the situation is compatible with Council Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security.

The ECJ has ruled that requiring a person who has changed gender to annul the marriage which he or she entered into before that change of gender in order to be entitled to receive a retirement pension at the age provided for persons of the sex which he or she has acquired constitutes direct discrimination based on sex.

In today’s judgment, the Court, first, makes it clear that in the present case it is not being asked to consider, generally, whether the legal recognition of a change of gender may be made conditional on the annulment of a marriage entered into before that change of gender. However, it notes that, even though the legal recognition of change of gender and marriage are matters which fall within the competence of member states with regard to civil status, member states must respect EU law and, in particular, the principle of non-discrimination when they exercise their powers in that area.

The Court confirms its case law which states that the Directive, in view of its purpose and the nature of the rights which it seeks to safeguard, also applies to discrimination arising from gender reassignment. In that regard it notes that, for the purposes of application of the Directive, persons who have lived for a significant period as persons of a gender other than their birth gender and who have undergone a gender reassignment operation must be considered to have changed gender.

The Court notes that the condition that a person’s marriage must be annulled in order for that person to be eligible for a State retirement pension as from the statutory pensionable age for persons of that gender applies only to persons who have changed gender. It concludes from this that the UK legislation treats less favourably a person who has changed gender after marrying than it treats a person who has retained his or her birth gender and is married.

The Court then goes on to examine whether the situation of a person who changed gender after marrying and the situation of a person who has retained his or her birth gender and is married are comparable — a condition that must be met in order to determine whether a difference in treatment constitutes direct discrimination.

The Court notes, in this regard, that the purpose of the UK’s statutory pension scheme is to provide protection against the risks of old age by conferring on the person concerned the right to a retirement pension acquired in relation to the contributions paid by that person during his or her working life, irrespective of marital status. The Court concludes that, in the light of that subject matter and those conditions for entitlement, the situation of a person who changed gender after marrying and that of a person who has kept his or her birth gender and is married are comparable. The Court points out that the purpose of the marriage annulment condition (that purpose being to avoid marriage between persons of the same sex) is unrelated to the retirement pension scheme. As a result, that purpose does not affect the comparability of the situation of the two categories of persons mentioned above, in the light of the subject matter and the conditions under which that pension is granted.

Since the difference in treatment in question does not come within any of the derogations allowed by EU law, the Court finds that the UK legislation constitutes direct discrimination based on sex and is, for that reason, prohibited by the Directive.