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EU law just helped secure a big win for LGBT equality in Brexit Britain

Nick Duffy July 12, 2017

SOUTHPORT, UNITED KINGDOM - MAY 09: In this photo illustration the flag of the European Union and the Union flag sit on top of a sand castle on a beach on May 09, 2016 in Southport, United Kingdom. The United Kingdom will hold a referendum on June 23, 2016 to decide whether or not to remain a member of the European Union (EU), an economic and political partnership involving 28 European countries which allows members to trade together in a single market and free movement across it's borders for cirtizens. (Photo by illustration by Christopher Furlong/Getty Images)

Britain might be heading for the exit door, but European Union law was instrumental in securing a win on LGBT rights today.

The UK’s Supreme Court ruled this morning that married gay couples are entitled to equal pension rights, closing a decade-old inequality that has led to gay couples being short-changed hundreds of thousands of pounds.

The inequality in pensions law, defended by successive governments, had allowed spousal pensions to be paid to gay people at a far lower rate than for heterosexuals – by allowing employers to exclude same-sex partners from accrued benefits paid into funds before civil partnerships became law.

Change was sealed today thanks to the Supreme Court decision, but legal experts noted the ruling was predicated on the EU Framework Directive to counter discrimination.

The victory being based on EU law is quite ironic, as Britain prepares to leave the European Union.
EU flag

 

Emma Norton, Liberty lawyer acting for Mr Walker, said: “We are delighted the Supreme Court recognised this pernicious little provision for what it was – discrimination against gay people, pure and simple.

“But this ruling was made under EU law and is a direct consequence of the rights protection the EU gives us. We now risk losing that protection. The Government must promise that there will be no rollback on LGBT rights after Brexit – and commit to fully protecting them in UK law.

“How else can John be sure he and others like him have achieved lasting justice today?”

Alastair Meeks, pensions partner at Pinsent Masons, said: “The Supreme Court used principles of EU law to strike down UK statute.

“In these days of Brexit, that will attract attention. It is unlikely in practice that post-Brexit any government would seek to reverse this decision, even if it could.

“But it does suggest that the law might develop very differently from how it would otherwise develop once Britain has left the EU.

“Social changes might well take considerably longer to work their way through into legal consequences.”

Pensions law previously left some married gay and lesbian couples worse off than their heterosexual counterparts – because same-sex couples have only been recognised in the eyes of the law since civil partnerships were introduced in 2005.

The loophole meant that while elderly straight people could accrue decades of rights to partner benefits on private pension plans, a number of plans only offer entitlements from 2005 onwards to gay and lesbian couples.

66-year-old John Walker challenged rules that meant he would only be entitled to pass £500 of his final salary pension on to his husband and partner of more than 30 years when he dies – compared to £41,000 that a female widow could claim.

The Supreme Court judgment noted: “The legal status of gay and lesbian employees has been transformed [due to]the introduction of equal treatment legislation by the European Union.

“The Framework Directive’s prohibition of discrimination in the field of employment and occupation extended to unequal treatment on the ground of sexual orientation.

“Part 5 of that Act prohibits direct and indirect discrimination on grounds of sexual orientation in the context of employment.”

The court later affirmed: “Non-discrimination on grounds of sexual orientation is now a principle of EU law.

“It follows that any contemporary denial to his husband of a spouse’s pension, calculated on all the years of Mr Walker’s service, would be incompatible with the Framework Directive.”

The previous rules date back to a “compromise” under the former Labour government.

Mr Meeks continued: “The Supreme Court has surfed on the fast-changing social currents to consign to the scrapheap a compromise established a dozen years ago on the introduction of civil partnerships.

“At the time the compromise was not particularly remarked upon as unfair, but now it looks distinctly out of date to many. ”

LGBT campaigner Peter Tatchell said: “This is a victory for equality and fairness. It will remedy the financial penalisation suffered by many same-sex couples when one partner dies.

“The discrimination against John Walker and his husband was a violation of both UK and EU equality laws and of the European Convention on Human Rights.”

Mr Tatchell noted that Brexit “will not invalidate UK and European Convention anti-discrimination protections”.

He also warned: “Unless the government acts to remedy all pension inequalities for all same-sex couples, there will need to be a second legal case against similar discrimination in the local government pension schemes that continue to penalise LGBT spouses and civil partners.”

John Walker said: “I am absolutely thrilled at today’s ruling, which is a victory for basic fairness and decency. Finally this absurd injustice has been consigned to the history books – and my husband and I can now get on with enjoying the rest of our lives together.

“But it is to our Government’s great shame that it has taken so many years, huge amounts of taxpayers’ money and the UK’s highest court to drag them into the 21st century. In the years since we started this legal challenge, how many people have spent their final days uncertain about whether their loved one would be looked after? How many people have been left unprovided for, having already suffered the loss of their partner?

“What I would like from Theresa May and her ministers today is a formal commitment that this change will stay on the statute books after Brexit.”

More: EU, Law, LGBT, pension, UK

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