(CN) – A transgender Briton prevailed at the European Court of Justice on Tuesday in her bid to claim a retirement pension without annulling the marriage she entered into with another woman before transitioning.
Turning 70 this year, the challenger here has spent the last decade fighting for the state retirement pension that the United Kingdom used to offer to women when they turned 60. She is identified in the case only by the initials MB.
Because national law at the same time set the pensionable age for men at 65, however, national authorities apprised MB her failure to formally apply for gender recognition meant that they could not determine her pensionable age.
At the time MB had been living as a woman since 1991 but she lacked what is known as a gender-recognition certificate. Because of the U.K.’s then laws on same-sex marriage, MB could not apply for gender recognition in without getting an annulment of the woman she had married in 1974.
MB and her wife wished to remain married for religious reasons, however, and MB was recognized as a woman on both passports and driving licenses issued by U.K. authorities going back to 1991.
She had also undergone gender-reassignment surgery using the National Health Service in 1995.
The Court of Justice found Tuesday that the annulment requirement is precluded by EU directives on equal treatment.
“It appears … that that national legislation treats less favorably 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 ruling out of Luxembourg states.
“Such less favorable treatment is based on sex and may constitute direct discrimination within the meaning of Article 4(1) of Directive 79/7.”
Thursday’s ruling aligns largely with the recommendation of Advocate General Michael Bobek from Dec. 5, 2017.