Case C-451/16, MB – trans pension discrimination

Under old UK law, a married trans person who after surgery refused to have their marriage annulled would not be granted a certificate which, inter alia, would entitle them to a pension at the age of their acquired legal gender. Is that legal situation compatible with the ban on discrimination in the EU’s ‘equal treatment in social security’ Directive 79/7?

Background
In the UK, people born before 1950 reach retirement at different ages; for men it is 65 and women it is 60. For a person born in the body of a man who later becomes a woman, then the state retirement age is still 60 – on the condition that they possess a full gender recognition certificate.

However, to qualify for a full gender recognition certificate, the State imposed other conditions. Thus, if a trans person was already married, then they were required to have their existing marriage annulled. Once single, an application could subsequently be made for a ‘full’ gender recognition certificate.

This case concerns a married person, known for the purposes of these legal proceedings as ‘MB’. More than twenty years ago, MB underwent gender reassignment surgery and decided not to have the marriage annulled.

When MB turned 60, she applied for a state pension. However, her application was refused. The UK State justified its refusal on the basis that she did not possess the requisite full gender recognition certificate.

The legality of the State’s refusal was challenged in the courts and after eight years the dispute has arrived at the UK’s Supreme Court. There, the judges turned to the EU’s ‘equal treatment in social security’ Directive 79/7. This Directive bans discrimination, in particular on grounds of marital or family status. However, the five judges could not agree on whether the UK rules were compatible with the Directive. Consequently, it was decided to make a preliminary reference to the CJEU.

Question Referred
According the UK Supreme Court’s website and Lord Sumption’s judgment,

The question referred 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.