Richards v Secretary of State for Work and Pensions: Case C-423/04

ECJ: P Jann (President of Chamber), K Schiemann, N Colneric, J N Cunha Rodrigues and E Juhász (Judges), F G Jacobs (Advocate General): 27 April 2006

The applicant, a United Kingdom resident who had been born in 1942 with sex registered as male and subsequently had a male-to-female gender reassignment, applied for a pension on reaching the age of 60, the pensionable age under the Pensions Act 1995 for women born before April 1950, but was refused on the ground that she was still regarded under the law as it stood at the material time as being of the male sex and had not yet reached 65, the pensionable age for men under the 1995 Act. In appeal proceedings by the applicant, the Social Security Commissioner referred to the Court of Justice of the European Communities for a preliminary ruling the questions whether such a refusal was contrary to Council Directive 79/7/EEC on equal treatment in social security matters, article 4(1) of which prohibited discrimination on grounds of sex, and, if it was, form what date the court's ruling should have effect. On the first question, the United Kingdom Government relied inter alia on article 7(1)(a) of the Directive, which permitted member states to exclude from the scope of the Directive the determination of pensionable age for the purposes of granting old-age and retirement pensions.

The Court of Justice held:
(1) Directive 79/7 applied not only to discrimination based on the fact that a person was of one or the other sex, but also to discrimination arising from the gender reassignment of a person, such as in the present case where, in comparison with women whose gender was not the result of gender reassignment surgery, the applicant had suffered unequal treatment flowing from the non-recognition of her acquired gender for the purposes of her pension rights; that article 7(1)(a) of the Directive was not in point as it related only to the determination of different pensionable ages for men and women, which was not in issue in the present case; and that, accordingly, article 4(1) of the Directive precluded legislation which denied to a person who had undergone male-to-female gender reassignment entitlement to a retirement pension on the ground that she had not reached the age of 65, when she would have been entitled to such a pension at the age of 60 had she been held to be a woman as a matter of national law.

(2) That the court took the step of limiting the temporal effect of a judgment only in quite specific circumstances where there was a risk of serious economic repercussions; and that, in the present case, there was no need to limit the temporal effect of the judgment, in view, inter alia, of the change in the relevant United Kingdom law as from 4 April 2005, the date of the entry into force of the Gender Recognition Act 2004.

Appearances: Tim Eicke (instructed by Liberty) for the applicant; Tim Ward (instructed by Department of Work and Pensions) for the United Kingdom Government; D Martin and N Yerrell for the Commission of the European Communities.