How much of a groundbreaking decision is the CJEU’s judgment for transgender rights? – Thibault Lechevallier

3 July 2018 by Guest Contributor

IMB v Secretary of State for Work and Pensions ,26 June 2018 

Weeks after ruling against certain sexual orientation tests for asylum seekers and finding that EU Member States must recognise the free movement rights of gay spouses, regardless of whether same-sex marriages are solemnised therein, the European Court of Justice (ECJ) held that the UK requirement for transgendered persons to be unmarried in order to qualify for a State pension at the retirement age of their current gender violated EU law.

Background facts

The claimant, identified as MB, is a male-to-female married transgendered person, i.e she was assigned the male sex at birth, but identifies as female. After being recognised as female on both passports and driving licenses issued by UK authorities, MB underwent sex reassignment surgery in 1995. She did not, however, obtain a Gender Recognition Certificate under the Gender Recognition Act 2004.

In 2008, MB reached the then-female retirement age of 60 and sought a State pension. However, her application was rejected on the grounds that i) she did not meet the retirement age for men(which then was age 65) and ii) she could not be considered for a pension on the basis of the retirement age for womenbecause she had not acquired a Gender-Recognition Certificate. Why not obtain such a certificate, one might ask? The reason is that, at the time, it would have been conditional on her annulling her marriage (same-sex unions were not allowed then). However, MB and her spouse were unwilling to divorce. In a nutshell, MB found herself in an invidious situation: either, she waits until the retirement age for men to lay claim to her pension, even though she identifies (but is not legally recognised) as female, or she divorces her partner, acquires a gender recognition certificate, and applies for a pension at the female retirement age.

MB challenged the refusal to grant her a pension at the female retirement age in national courts, arguing that the marriage annulment prerequisite amounted to unequal treatment contrary to EU law. To that end, she relied on a EU directive  from 1978 outlawing sex-based discrimination in matters of social security, including old-age and retirement pensions.

The case wound its way up to the Supreme Court, who were divided on the issue and referred a question to the ECJ. The Supreme Court queried whether the EU directive at hand prohibits the requirement imposed on transgendered persons to be unmarried in order to qualify for a State retirement pension at the retirement age of their current gender, in addition to meeting various other physical, social and psychological criteria.

Reasoning behind the Court’s decision

The ECJ followed Advocate General Bobek’s Opinion, and held that UK pension law amounted to direct sex discrimination. In greater detail, the Court ruled that the said EU directive precludes the UK requirement for transgendered persons not only to satisfy physical, social and psychological criteria, but also to fulfil the condition of being unmarried to a person of their acquired gender, in order to seek a State retirement pension as from the statutory pensionable age applicable to persons of their acquired gender.

• As regards direct discrimination, the Court first noted that Member States must comply with the principle of non-discrimination in civil matters, in spite of retaining full competence over them. Direct sex discrimination is made out when a person is treated less favourably on grounds of sex than another person is, has been or would be treated in a comparable situation. In light of its case law, the ECJ then stated that, in view of its purpose and the nature of the rights it safeguards, the directive in question does apply to discrimination arising from gender reassignment. Indeed, judges took the view that individuals who have lived for a significant period as persons of a gender other than their birth gender and who have undergone a gender reassignment operation mustbe considered transgendered.

• In the present case, the Court found that while the UK marriage annulment requirement affected persons who transitioned after marrying, it did not apply to married cisgender individuals i.e those identifying with the sex assigned at birth.

• The Court went on to compare the situation of a person who transitioned after marrying with that of a married cisgender person. Judges held that the State retirement pension is designed to protect its recipients against the risks of old age by conferring on them the right to a retirement pension acquired in relation to the contributions they paid during their working lives, irrespective of marital status. Thus, both situations were deemed comparable.

• The ECJ ruled that the marriage annulment condition, hitherto fashioned to avoid same-sex marriages, is unrelated to that retirement pension scheme. Instead, it gives rise to direct sex discrimination against married transgender applicants that falls within none of the derogations exhaustively set out in the EU directive. 

Comment: an unsurprisingly progressive decision?

Days after the World Health Organisation removed transgenderism from its international classification of diseases, the ECJ’s decision was hailed by MB’s lawyers as a win of ‘great importance in the move towards increased equality and respect’. The case will now return to the Supreme Court to apply the ruling.

The MB judgement can be considered against the backdrop of a range of progressive and LGBTQI-friendly case-law. Over the years, the EU has developed an important corpus of law protecting a variety of characteristics, such as sexual orientation, and boasts a wide array of anti-discrimination directives as well as protective Charter of Fundamental Rights provisions. Indeed, non-discrimination on the basis of sexual orientation is built into the fabric of the Union: Article 10 TFEU provides that in defining and implementing its policies and activities, the Union shall aim to combat sexual orientation-based discrimination. This has had a significant impact on the UK. For instance, the 1999 Sex Discrimination (Gender Reassignment) Regulations were introduced in response to an ECJ landmark ruling finding that protection against gender-based discrimination at work should also apply to people who had undergone or were planning to have gender reassignment surgery. In another British case, the Court held that transgender partners must be entitled to the same employment benefits as married couples and be treated equally under pension schemes.

Crying victory too early?

Looking at the bigger picture, Amnesty International estimates that transgenderism concerns as many as 1.5 million people across Europe. Hearteningly, most European countries now provide for legal gender recognition procedures. However, 2017 statistics supplied by the Trans Rights Europe Map & Indexhighlight the many hurdles that life as a transgendered person implies, which offers a more sobering account of transgender rights in Europe than MBmight suggest. It transpires that 23 European nations still require transgenders to divorce while 36 systematically demand that their mental health be diagnosed, a process slammed by LGBT groups as stigmatising and discriminatory. The harrowing report further underlines that bias-motivated crimes against LGBT people are on the rise throughout Europe and highlights the flaws in the European asylum protection on grounds of gender identity, especially in light of the rise of populists avowedly thriving on the current anti-migrant sentiment. Worse still, it notes that only 2 European countries explicitly outlaw the controversial conversion therapies on grounds of gender identity while 20 still require sterilisation. 8 States have no practical means of recognising transgender people whatsoever. In European terms, this is a polarising issue, with certain Central and Eastern countries having expressed frustration upon the EU for acting as a rubber-stamp for their Western counterparts’ liberal views.

Back in 2002, when transgender campaigner Christine Goodwin won her legal battle against the UK to be legally recognised as female, the ECHR considered there was ‘clear and uncontested evidence of a continuing international trend in favour of increased social acceptance’ of transgendered persons. One wonders, beyond the Goodwin case, whether this was a specious statement. Admittedly, in the UK, transgender rights have come a long way since the infamous 1971 case Corbett v Corbett, and their legal protection has rapidly improved all over Europe. This week’s ECJ judgement can be considered as part of the constellation of legal progress towards the full recognition of transgender persons. Nevertheless, however bright and far-reaching it may be, this ruling also lays bare theobstaclesthey face on the road to equality and social acceptance.

Thibault Lechevallier is currently a stagiaire in the Cabinet of Judge Tomljenovic at the General Court of the European Union. This blog post is written in a purely personal capacity and reflects only the author’s views. The author wishes to thank Michael Rhimes for drawing this case to his attention and for his comments