ECJ rules UK pension protocol discriminatory

The UK’s pension protocol has been deemed discriminatory by the European Court of Justice after a transgender woman was initially refused a pension.

The defendant’s lawyers, one from Arnold & Porter and the other from Freshfields Bruckhaus Deringer, expressed their delight after a ten year battle for their client’s right to the pension and for legal recognition as a woman. They are “hopeful” for an immediate amendment by the Department for Work and Pensions to address transgender pensions.

The case, which was referred to the ECJ by the Supreme Court back in 2016, concerned the defendant, known as MB, being refused her pension due to refusing to end her marriage after her gender changed.

The Supreme Court could not come to a unanimous decision after MB asked them to overturn the Court of Appeal’s ruling, which was made in 2014.

Transgender pensions UK law

In the eyes of UK law, MB was not yet eligible for a pension when she applied upon turning 60 in May 2008. Since she did not own a ‘gender recognition certificate’, she was still officially registered as male. This meant she had to wait until she turned 65.

Because she chose not to end her marriage after undergoing gender reassignment surgery in 1995, she was not eligible for the certificate under UK law. MB decided not to get an annulment on the grounds that the marriage was overseen “by God”.

Legal UK pension criteria state that women born before 6th April 1950 can apply for a pension when they turn 60. Men who were born before 6th December 1953, have to wait until they turn 65.

MB was born in 1948 and got married in 1974. But after being reviewed by the ECJ, it was ruled that the legislation surrounding the conditions of marriage annulment and the criteria needed to get a pension were both “unrelated” to one another.

This is a small decision but it has great importance in the move towards increased equality and respect.

MB’s lawyers: Jacqueline Mulryne and Chris Stothers of Arnold & Porter and Freshfields Bruckhaus Deringer.