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EU court says Britain discriminated against transgender woman in pension age dispute

Nick Duffy December 5, 2017

An EU justice chief has found that the UK discriminated against a transgender woman by denying her a pension.

The case surrounds a transgender woman identified for legal reasons as MB.

MB got married to her wife in 1974. The pair stayed together after MB came out as transgender and transitioned to female, undergoing gender surgery in the 1990s.

But the family hit a stumbling block when MB reached pension age back in 2008.

Under UK law at the time, women can retire earlier than men. The male and female state pension ages are already set to be equalised by 2020 – but under pre-existing rules, women were eligible to retire as much as five years sooner, at the age of 60.

As the Gender Recognition Act allowed for legal recognition of transgender people as their preferred gender, MB was entitled to be treated as legally female and claim her pension.

However, she was denied a full gender recognition certificate at the time of her retirement in 2008, because the UK did not permit same-sex marriage. This meant that MB’s marriage would have to be annulled in order for her to gain legal recognition.

When MB applied for a state retirement pension in 2008, 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.

She was told to wait until the male retirement age of 65.

MB took her case to the courts, contending that she suffered discrimination contrary to EU law.

And she today gained backing from Advocate General Michal Bobek at the European Court of Justice.

In a non-binding opinion, he ruled that the treatment of MB “amounts to direct discrimination on the basis of sex”.

A release explained: “In reaching this conclusion, the Advocate General undertakes an assessment as to whether the circumstances of the case give rise to direct discrimination on the grounds of sex. Direct discrimination is characterised by the unequal treatment of a comparable group of persons to the detriment of another group due to their ‘protected characteristic’ (in this case their sex).

“Such a difference in treatment on the grounds of sex cannot be justified.

“Direct discrimination on the basis of sex is allowed only in the specific cases listed under the Directive.

“The derogation allowing Member States to maintain different retirement ages for eligibility to a retirement pension between men and women does not allow for a difference in treatment between transgender persons and those persons whose gender is not a result of gender reassignment.”

(Photo by Sean Gallup/Getty Images)

It adds: “The Advocate General acknowledges that it is for the Member States to determine the conditions under which legal recognition is given to the change of gender of a person.

“However, he does not accept the argument that this prevents a conclusion of unlawful treatment on the basis that the requirement to be unmarried is not a direct requirement for access to the state retirement pension, but a requirement for gender reassignment recognition, the conditions for which fall within the competence of the Member States.”

Advocate General Bobek noted that the situation has changed substantially since MB’s case – not only are same-sex marriages now permitted and trans people not required to annul their marriages, but the pension age for women is being slowly raised to equalise that for men.

He said: “This situation arises, in part, from a derogation [of EU law] which is not only exceptional but is also expected to progressively disappear as the UK converges the retirement ages for men and women.

“Consequently, the root of the problem in this case is bound to disappear as well.”

(Photo by OLI SCARFF/AFP/Getty Images)

MB had taken her case to the UK Supreme Court last year, arguing that her rights had been infringed.

But the court was unable to reach a decision on the case, and the issue was referred to the European Court of Justice.

The UK’s Supreme Court ruled: “The Supreme Court is divided on the question, and in the absence of [European] Court of Justice authority directly in point considers that it cannot finally resolve the appeal without a reference to the Court of Justice.

“The question referred is whether Council Directive 79/7 EEC precludes the imposition in national law of a requirement that, in addition to satisfying the physical, social and psychological criteria for recognising a change of gender, a person who has changed gender must also be unmarried in order to qualify for a state retirement pension.”

More: department of work and pensions, DWP, pensions, Sandra MacDougal, trans women, Transgender

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