The European Court of Justice (ECJ) gave judgment on 26 June 2018 in the case of MB (Appellant) v Secretary of State for Work and Pensions (Respondent) (C-451/16) concerning a condition of UK law that required a married transgender person to annul his/her marriage in order to be legally recognised as his/her acquired gender and thereby access State pension benefits on the basis of that gender.
Background
In the UK there is a separate qualifying age for the State pension for men and women of a certain age – for a woman born before 1950, eligibility is age 60 whereas for a man born before 1953, eligibility is age 65. The claimant was born a male in 1948 and later married. As a subsequent male to female transsexual, she applied for a State retirement pension on reaching age 60 on the basis of her acquired gender. Her application was rejected as she could not produce a full gender recognition certificate. Under UK legislation such a certificate was conditional on the annulment of her marriage. She had not applied for it as, for religious reasons, she did not wish to annul her marriage. She challenged that legislation in the UK courts. The UK Supreme Court asked the ECJ whether Council Directive 79/7/EEC precluded 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.
ECJ decision
The ECJ, although acknowledging that matters of civil status and legal recognition of a change of a person’s gender were within the competence of Member States, stated it was well established that while exercising a competence, a Member State still has to comply with EU law and in particular the principle of non-discrimination. The UK legislation in question was found to be discriminatory as it accorded less favourable treatment directly based on sex to a person who changed gender after marrying than it accorded to a person who kept his or her birth gender and was married. The UK Government’s proposed reasoning of avoiding a marriage between persons of the same sex did not fall within the derogations from the prohibition on discrimination in Council Directive 79/7/EEC.
Comment
As same sex marriage is now legalised (by constitutional amendment and the Marriage Act 2015 in Ireland) and the State pension age has been equalised for both sexes the decision has limited application here. Current Irish and UK law would not fall foul of Council Directive 79/7/EEC on this point but this arose from a historic issue.
It is noteworthy that the Gender Recognition Act 2015 in Ireland, similar to the UK legislation in this case, (prior to its amendment by the Marriage Act 2015) had required a statutory declaration that a person was not married in order to apply for a gender recognition certificate. It is likely that a limited number of individuals in Ireland (if any) could be in a similar situation to the claimant in this case.
Contributed by: Jane Barrett
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