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The CJEU has ruled in MB v Secretary of State for Work and Pensions [2018] Case C‑451/16 , that the previous position in the United Kingdom under which the acquired gender of a transsexual person was not recognised for the purpose of determining the qualifying age for a state pension if that person was and remained party to a subsisting marriage was incompatible with equal treatment under Council Directive 79/7/EEC.
Background
Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security prohibits discrimination on grounds of sex with respect to state benefits, including old age and retirement pensions; however, it allows Member States to exclude from its scope the determination of pensionable age for the purpose of granting old age and retirement pensions. The UK has exercised that right of derogation, as a result of which the pensionable age for a woman born before 6 April 1950 is 60 and that for a man born before 6 December 1953 is 65.
MB was born a male in 1948 and married in 1974. MB began to live as a woman in 1991 and underwent sex reassignment surgery in 1995. MB does not, however, hold a full certificate of recognition of her change of gender because in order for a certificate to be granted her marriage would have had to be annulled and she and her wife wished to remain married “for religious reasons” [17] which were not specified. When MB reached the age of 60 in 2008 and applied for a state retirement pension, her application was rejected because without a full gender recognition certificate she could not be treated as a woman for the purposes of determining her statutory pensionable age.
MB challenged that decision, arguing that the provision that she must not be married was discrimination prohibited by EU law. The UK Supreme Court referred the matter to the CJEU for an Opinion as to whether such a situation was compatible with the Directive: see MB v Secretary of State for Work and Pensions […]