(CN) – An adviser to Europe’s highest court scolded the U.K. government Tuesday over its marriage-annulment requirements that kept a transgender woman from collecting an old-age pension.
Described in the ruling only by her initials, MB has been fighting since 2008, when she turned 60, for the state retirement pension that the U.K. offered to women born before April 6, 1950.
National law at the time set the pensionable age for men at 65, however, and the U.K. claimed that it could not determine MB’s pensionable age because she did not have a full gender recognition certificate.
MB did indeed lack the necessary certificate, but she had been living as a woman for decades. In addition to undergoing gender-reassignment surgery using the National Health Service in 1995, MB has been recognized as a woman going back to 1991 on both passports and driving licenses issued by U.K. authorities.
“At the hearing, that government nonetheless maintained that the issuance of those documents is a mere internal ‘administrative practice’ without any legal significance,” Advocate General Michal Bobek wrote Tuesday in an opinion on MB’s case. “Without wishing to be perceived as a personal-ID-loving formalist, I must admit that I have some intellectual difficulty with the proposition that official documents issued by a member state would have no legal significance.”
Bobek noted that the reason why MB did not apply in the 1990s for gender recognition is simple.
“One of the conditions for such legal recognition was that she would have to be ‘unmarried’, because the United Kingdom did not permit same-sex marriage at that time,” Bobek wrote. “For MB, that would mean obtaining an annulment of her marriage, to which she and her wife were opposed.”
Bobek’s opinion does not disclose whether MB and her wife are still together, only that they married in 1974.
Though his opinion is not binding on the European Court of Justice, which will now begin its own inquiry into the case in Luxembourg, Bobek determined Tuesday that the U.K. violated the EU’s directive on equal treatment in forbidding transgender individuals from accessing state pensions unless they are unmarried.
Bobek rejected the emphasis that the U.K. put on its precedent in transgender law, which says, “it is for the member states to determine the conditions under which legal recognition is given to the change of gender of a person.”
“Taking that logic to the point of absurdity, a legal requirement to wear a pink dress at least two days a week in order to be (socially and culturally) recognized as a woman would be fine if it was a legal precondition for the recognition of gender reassignment,” Bobek wrote. “I readily acknowledge that the condition in the present case is of a very different nature. But where and how would a line for ‘acceptable’ conditions (those excluded from any review) and those ’unacceptable’ ones (those susceptible to review) be drawn? In addition, per se and abstractly seen ‘acceptable’ conditions might, in certain factual or legal contexts, still lead to quite unacceptable results.”
Bobek also noted marital status play no role for cisgender persons when it comes to pension rights.
“The United Kingdom Government denies that there has been unequal treatment,” he wrote. “Cisgender and transgender women alike can benefit from a state retirement pension at the age of 60. Though neither of those categories can be married to a woman.
“This argument is unconvincing.”
Bobek likewise waved away the U.K.’s concern that a ruling or MB will have disparate effects on its citizens in different parts of the world, not all of whom are subject to EU law.
Pointing to MB’s government-issued IDs and her medical history, Bobek said “these observations underline that it is difficult to maintain that there would be one universal regime on which all the other effects in national law depend.”
“Rather, it would appear that there are in fact a number of parallel and somewhat independent legal regimes,” the adviser’s opinion continues.
A member state has discretion when it comes to regulating internal civil-status matters, Bobek assured, but he said the conflicting scheme of area-dependent flexibility makes it difficult “to maintain … the paramount importance and the imperative of a unique regime and overall coherence of it.”
Bobek elected to close his opinion with a focus on the temporal element.
“The requirement in the present case has not been carved in stone,” he wrote. “It has changed several times.”
The U.K.’s adoption of the Gender Recognition Act in 2004 is what first made MB eligible for her retirement pension at the age of 60, but Bobek noted that the U.K. also legalized same-sex marriage in 2013.
“As a result, it is only one (age-dependent) set of transgender persons that, in a way, fall in a crack between two different regulatory regimes,” he wrote. “This again does not strengthen the proposition of the crucial overall coherence of the system, this time concerning its temporal dimension.”
Bobek noted that the differing age requirements for men and women in the U.K. when it comes to pension applications reflects another “derogation from the equal treatment principle.”
Through the convergence of the retirement ages for men and women, however, Bobek said this scheme was predicted “to progressively disappear 38 years ago.”
“As the referring court has stated, in the United Kingdom, the retirement age for men and women will gradually converge and be the same,” he wrote. “Thus, there as well as in other member states, the root of the problem is bound to disappear as well.”