Luxembourg, 08/01/2004 (Agence Europe) - A national legislation which, in failing to recognise transsexuals' new sexual identity, denies them the right to marry, is contrary to Community law if its effect is to deprive them of any entitlement to a survivor's pension, it was stated by the European Court of Justice in a press release.
In a British case, K.B. against National Health Service Pensions Agency and Secretary of State of Health, the Court answered the Court of Appeal (England and Wales Civil Division) which must enact on the fate of a nurse, K.B., who lives with a transsexual, R., who became a man after surgical operation.
K.B. wanted her companion to be able to benefit from a widow's pension, which was banned by British law whereby R. remained a women in civil records, making their marriage impossible. The Court of Justice points out that reserving certain advantages to married couples cannot be considered as sexual discrimination as such. There is, however, inequality of treatment as, in violation of human rights, a person cannot fulfil a condition necessary for granting an advantage (such as a pension) protected by Community law.
The Court recalls that the Court of Human Rights has already held that the fact that it is impossible for transsexuals to marry in their acquired gender constitutes an infringement of their right to marry under Article 12 of the European Court of Human Rights.