ECJ rules on occupational pensions for transsexuals

The European Court of Justice (ECJ) ruled in January 2004 that national legislation which denies transsexuals the right to marry is contrary to Community law if the effect of this is to deprive them of any entitlement to a survivor’s pension. The ECJ has referred the case back to national courts in the UK for them to determine whether Community law can be relied on in such a case.

In case C-117/01, KB v National Health Service Pensions Agency and Secretary of State for Health, the European Court of Justice (ECJ) heard that 'KB' had worked for the UK National Health Service (NHS) as a nurse for 20 years. During that time, she had contributed to the NHS pension scheme, which provides for a survivor’s pension to be payable to the surviving spouse (taken to mean the person to whom the scheme member is married).

KB has shared an emotional and domestic relationship for many years with 'R', who has undergone female-to-male gender reassignment surgery. KB wishes R to have the right to the widower’s pension under the NHS scheme. However, UK legislation prevents transsexuals from marrying in their acquired sex and deems void any marriage to which the parties are not male and female. Therefore, contrary to their wishes, KB and R have not been able to marry and R is thus prevented from receiving a survivor’s pension.

KB took a case to the UK courts, claiming that she was a victim of discrimination on grounds of sex in relation to pay. She argued that the term 'widower' must be interpreted as also encompassing the surviving member of a couple, who would have acquired the status of a widower, had his gender not resulted from surgical gender reassignment. The UK court of appeal referred the case to the ECJ.

In its ruling, issued on 7 January 2004, the ECJ found that a survivor’s pension paid under an occupational scheme falls within the scope of the Treaty establishing the European Community’s provisions prohibiting all discrimination on grounds of sex in relation to pay. It also found that the decision to restrict certain benefits to married couples cannot, of itself, be regarded as prohibited by Community law as discriminatory on grounds of sex as, for the purpose of awarding the survivor’s pension, it is irrelevant whether the claimant is a man or a woman.

However, the ECJ found that there is inequality of treatment which, although it does not directly undermine a right enshrined in Community law, affects one of the conditions for the granting of that right. Here, the inequality of treatment relates to the capacity to marry, where marriage is a necessary precondition for the award of a widower’s pension. The fact that the couple in this case are not able to marry arises from UK law on marriage and birth certificates.

Thus, the ECJ ruled that the UK legislation in question must be regarded as being, in principle, incompatible with Community law. However, as it is for the Member States to determine the conditions under which legal recognition is given to changes of gender, the ECJ referred the case back to the national courts to determine whether a person in this situation can rely on Community law to nominate their partner as the beneficiary of a survivor’s pension.