The woman, MB, had been unable to apply for a gender recognition certificate (GRC) as she refused to annul her marriage to her wife. UK law at the time only permitted marriage between a man and a woman. MB's 2008 application for a UK state pension was refused as she did not hold a valid GRC, and therefore could not be treated as a woman for the purposes of determining her statutory pensionable age.
The CJEU has now ruled that the UK's position is in breach of the EU's 1979 directive on equal treatment and social security and is directly discriminatory. The court stressed that its decision "concern[s] only the conditions for entitlement to the state retirement pension at issue in the main proceedings", and should not be considered a judgment on whether legal recognition of a change of gender may be conditional on the annulment of a pre-existing marriage.
"In the present case, the national legislation at issue in the main proceedings makes access by persons who have changed gender to a state retirement pension as from the statutory pensionable age for persons of the acquired gender subject to, inter alia, the annulment of any marriage into which they may have entered before that change," the CJEU said in its judgment. "It appears, therefore, that that national legislation treats less favourably a person who has changed gender after marrying than it treats a person who has retained his or her birth gender and is married."
"[A] derogation from the prohibition … of all direct discrimination on grounds of sex is possible only in the situations exhaustively set out in the provisions of that directive … As it is, the objective invoked by the United Kingdom government [preventing same-sex marriage] does not correspond to any of the derogations allowed by that directive," it said.
Same-sex marriage was introduced in the UK in 2014, and the laws surrounding gender recognition in the UK have since been amended to allow the issue of a full GRC to a married applicant with the consent of that person's spouse. The UK is also in the process of equalising the SPA for men and women, although women born before 6 April 1950 are entitled to claim a UK state pension from the age of 60. Men born before 6 December 1953 cannot apply for a UK state pension until they reach the age of 65.
MB's case will now return to the UK Supreme Court for a final ruling.
Pensions expert Alastair Meeks of Pinsent Masons, the law firm behind Out-Law.com, said that although the CJEU "claimed to have decided the case on a narrow point", it could potentially have wider implications.
"The court ruled that the requirement not to allow same sex marriages by operation of a gender recognition certificate had nothing to do with the payment of a state pension," he said. "This constituted less favourable treatment and was therefore unlawful. This logic would appear to apply to almost every benefit potentially available on being recognised as a member of the adopted gender. It is hard to see how the government could sustain the line that a GRC must annul a marriage."
"The case did not decide that governments cannot require GRCs. Given that same sex marriages are now possible and state pensions are being equalised, the narrow point decided is likely to disappear. But the case shines a light on the extent to which the CJEU will allow governments to patrol transgender rights. It appears that governments are going to need to consider very carefully the impact of their requirements on the individual," he said.