Luxembourg, 19/12/2005 (Agence Europe) - Advocate General Jacobs has ruled, in the case "Richards vs the Secretary Of State for Work and Pensions", that a Member State could not refuse pension payments from the age of 60, to a male-to-female transsexual, as long as this request was made before 2005, the European Court of Justice states in a press release. It points out that legislation on setting different retirement ages for men and women does not come under the scope of application of European directives. However, it adds, legislation on determining the sex of a person must be compatible with the Community directive on sexual equality for social security matters. This piece of legislation, however, is not, it concludes. This case refers to the situation of transsexuals under the British administration, before the 2004 Gender Recognition Act came into force, on 4 April 2005.
Sarah Margaret Richards, who was born in 1942, was a man until her gender realignment operation in 2002, further to the diagnosis of gender dysphoria. She then applied to retire as of her 60th birthday, as British women born before 1950 are entitled to do. This application was rejected by the Department of State for Work and Pensions because it had been made far too early: Sarah Richards- still a man in the eyes of the law- was supposed to enter her application in the four months preceding her 65th birthday. Sarah Richards appealed against this decision and, before ruling, the Social Security Commissioner asked the Court if such a refusal violated the Community directive on the equality of treatment between the sexes. The Advocate General replied in the affirmative: as a comparison must be made, this must be done correctly, and Sarah Richards must be compared with a person of the female sex whose identity is not the result of a surgical operation, he ruled.
On the conclusions proper- one of the last sets before he leaves the Court on 10 January next year- Francis Jacobs sums up the issue of the legal status of transsexuals, who were exposed to the vagaries of the British administrative system until 2005. The Births and Deaths Registration Act 1953, he says, has always been interpreted in such a way that the registrar was able to correct clerical mistakes or substantive errors in birth certificates only at the time that the birth in question was registered. Francis Jacobs also referred to the turning point of the Goodwin ruling of the European Court of Human Rights of 11 July 2002- which had the direct consequence of the adoption of the 2004 Gender Recognition Act - and in which the Strasbourg judges recognise the right of transsexuals to a private life in line with their new identity.
There are also a few figures to be found in here. According to British sources, there were between 2000 and 5000 (sic) transsexuals in the year 2000, of all ages, out of a population of 60 million inhabitants. According to European sources, quoted in 2002, only four member countries of the Council of Europe- Albania, Andorra, Ireland and the United Kingdom- did not legally recognise sex changes. In a report in 2004, the European Commission listed countries where retirement age was the same for men as for women: Germany, Cyprus, Denmark, Spain, Finland, France, Hungary, Ireland, the Netherlands, Luxembourg, Portugal and Sweden.
In the United Kingdom, the retirement age for women is to be gradually increased to 65 between the years 2010 and 2015. Male-to-female transsexuals now share their fate with other British women: a woman born on or before 5 April 1950 reaches retirement age at 60, and a woman born on or after 6 April 1955 at 65 years of age, with a sliding scale for women born between these two dates