The Advocate General of the European Court of Justice Michal Bobek released today an opinion in which he states that a requirement in national law for a person who has changed gender to be unmarried in order to qualify for a state retirement pension is unlawful. Such a requirement, he says, is incompatible with the EU Directive on equal treatment between men and women.
The Advocate General’s opinion concern a British citizen named MB (only the initials are given), born in 1948, who was registered at birth as a man, and married in 1974. In 1991 she began to live as a woman and in 1995 she underwent gender reassignment surgery.
However, MB did not apply for a full gender recognition certificate under national legislation as, at that time, a married applicant for such a certificate would have to have his/her marriage annulled since same sex marriage was not permitted under UK law. MB and her wife were unwilling to see their marriage annulled.
In 2008, MB reached the age of 60, the pensionable age for women born before 6 April 1950. She applied for a state retirement pension. Her application was rejected on the basis that she did not have a full gender recognition certificate and therefore could not be treated as a woman for the purpose of determining her pensionable age. MB challenged that decision before the national courts. She claims that the condition to be unmarried amounts to discrimination contrary to EU law.
An EU Directive prohibits discrimination on grounds of sex with respect to state benefits, including old age and retirement pensions. The Directive provides for an exception to this prohibition, allowing Member States to exclude from its scope the determination of pensionable age for the purpose of granting old age and retirement pensions. The UK has exercised that right and the pensionable age for a woman born before 6 April 1950 is 60, and for a man born before 6 December 1953 is 65.
However, at the time that MB brought her case before the national courts, the acquired gender of a transgender person was not recognised for the purpose of determining the qualifying age for a state pension if that person was and remained party to a subsisting marriage. The UK Supreme Court asks the Court of Justice whether this position is compatible with the Directive.
In today’s Opinion, Advocate General Michal Bobek considers that the requirement, applicable only to transgender persons, to be unmarried in order for them to access a state pension is contrary to the Directive. In his view, this amounts to direct discrimination on the basis of sex which is not open to objective justification.