LUXEMBOURG (Reuters) - Britain’s rejection of a transgender woman’s claim for a women’s state pension because she was still married to her spouse from before her transition is discriminatory, an EU court adviser said on Tuesday.
Advocate General Michal Bobek of the Court of Justice of the European Union (ECJ) stated in a non-binding opinion that marriage status does not play a role in accessing state retirement pensions for people who are not transgender.
“This amounts to direct discrimination on the basis of sex, which is not open to objective justification,” a news release of the opinion stated.
The opinion was issued for a case where a transgender woman - who was registered as a boy at birth but has lived as a woman since 1991 and had gender reassignment surgery in 1995 - in the UK applied for a state retirement pension when she turned 60 in 2008.
According to UK law, a woman born before Apr. 6, 1950 must be 60 to access the state retirement pension, whereas for a man born before Dec. 6 1953 the age is 65.
Her application was denied because she didn’t apply for a full gender recognition certificate due to the fact that she remained married to a woman and her marriage would have been annulled at the time as same-sex marriage was not legal in Britain.
The UK Supreme Court asked the ECJ if the requirement to be unmarried to recognize a change in gender, and thus determine the qualifying age for a state pension, was allowed under EU law.
“The Advocate General concludes that there is unequal treatment since marital status does not play any role for cisgender persons in order to access a state retirement pension, whereas married transgender persons are subject to the requirement to annul their marriage,” the court’s press release said.
The court tends to follow the advice given by the advocate general in most cases, but it is not bound to do so.
The advocate general stressed that this was not a case about same-sex marriage. Member states are not compelled to recognize same-sex marriage, and they can still determine the conditions under which a change of gender will be legally recognized.
Reporting by Lily Cusack; Editing by Julia Fioretti and Raissa Kasolowsky