According to a ruling delivered on Tuesday 26 June (C-451/16), a national provision demanding that person who has changed gender must be single to benefit from a state pension constitutes direct discrimination based on gender, contrary to European Union law.
The case involves MB who was born male in 1948 and who married a woman but who subsequently began to live as a woman. MB does not, however, hold a full certificate of recognition of her change of gender, because that would have required her marriage to be annulled.
By 2013 British legislation had changed: the gender recognition committees are obliged to award this certificate to every married applicant if their spouse gives their consent. Having reached the legal age of retirement (60 years for women and 65 years for men in the United Kingdom), MB applied for a retirement pension. Her request was refused because she was unable to produce the certificate for recognising her new gender. The interested party challenged this refusal in the British courts.
Directive 79/7 on gender equality prohibits any gender-based discrimination regarding social benefits, including old age and retirement pensions. Nonetheless, it does allow a state to set a different age for claiming a pension between men and women.
In its decision, the Court refers to European case law whereby the directive also applies to discrimination arising from gender reassignment.
The European 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 establishes that under the terms of the directive 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.
The Court finds that the United Kingdom legislation constitutes direct discrimination based on sex and is, for that reason, prohibited by the Directive. (Original version in French by Mathieu Bion)