| DISCRIMINATION — Sex — Equal treatment — Pension — Refusal of pension to male-to-female transsexual on ground of not having attained male pensionable age — Whether unlawful discrimination — Council Directive 79/7/EEC, art 4(1)
Richards v Secretary of State for Work and Pensions (Case C-423/04)
ECJ: President of Chamber Jann, Judges Schiemann, Colneric, Cunha Rodrigues and Juhász: 27 April 2006
The refusal of a pension to a male-to-female transsexual on the ground that the person, although having reached the national pensionable age for women, had not reached that for men, was discriminatory and contrary to art 4(1) of Directive 79/7 on equal treatment in social security matters.
The claimant, a UK resident born in 1942 who had had a male-to-female gender reassignment operation, applied for a pension in 2002 when she reached 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 had not yet reached 65, the pensionable age for men under that Act. In proceedings by the claimant, the Social Security Commissioner referred to the Luxembourg court the question whether Directive 79/7 prohibited such a refusal, and if so, from what date the court’s ruling should take effect.
Art 4(1) of the Directive provides: “The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex … as concerns:—the scope of the schemes and the conditions of access thereto …” Art 7(1)(a) permits 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 said that the scope of Directive 79/7 was wide enough to apply to discrimination arising from gender reassignment. The applicant suffered unequal treatment in that she was unable to have her new gender, acquired following surgery, recognised for the purpose of application of the Pensions Act 1955, and as it arose from her gender reassignment, the unequal treatment was discrimination precluded by art 4(1). The derogation provided for in art 7(1)(a) was to be interpreted strictly and related only to the determination of different pensionable ages for men and women, which was not the present case. The Gender
Recognition Act 2004 would have had the effect that an application such as that in issue, made once a gender recognition certificate under the Act had been obtained, should have succeeded, but the Act only came into force in April 2005. On those and further grounds the court ruled that (1) art 4(1) of Directive 79/7 precluded legislation which denied a person who, in accordance with the conditions laid down by national law, 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, and (2) there was no need to limit the temporal effects of the judgment.
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