The Court of Justice of the European Union to hear UK transgender pension case

Posted by John Hamilton on
The UK Supreme Court has referred to the Court of Justice of the European Union (CJEU) the case of a retired transgender woman, whose pension was withheld by the DWP because she refused to divorce her wife. The woman in question went through gender reassignment surgery from male to female in the mid-1990s. She turned 60 before same-sex marriage was legalised in the UK in 2013. At the relevant time, gender recognition certificates were only issued to people who were unmarried.

As the woman did not want to divorce, she could not obtain a gender recognition certificate. As such, the DWP only paid her state pension from the age of 65, the male age of retirement, rather than from age 60, the retirement age for women at that time. She therefore sued the DWP for five years of her pension, arguing that the DWP’s reliance on domestic UK pensions legislation was in contravention of discrimination EU laws.

The specific question referred to the CJEU 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.

The CJEU situated in Luxembourg is the final arbiter on questions of the interpretation of EU law. Insofar as the aim of Brexit is to achieve political independence from the influence of EU institutions, it is difficult to envisage the CJEU continuing to have a long term role of direct influence on UK law. Over the years, the decisions of the CJEU have had a major influence on the evolution of pensions law in the UK – including the Barber decision itself and the long-line of equalisation cases. In the post Brexit era, this latest reference may turn out to be one of the last opportunities for the CJEU to have a direct influence on UK pensions law. Whilst the specific question referred to CJEU may only directly affect a small number of individuals, it could turn out to be an important test of the UK's longer term commitment to diversity and inclusivity.

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John advises corporate and trustee clients on pensions law and is a director of Blake Morgan's Pension Trustees Limited, the firm’s independent trustee company.

John Hamilton
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