Would you marry a transgender woman
CJEU Prohibits Great Britain Discrimination Against Transgender People: The Disadvantage of Marriage
The UK did not recognize it until 2014 when men married to a woman became women themselves. Because this also has consequences for the pension, the case ended up in court. Now it was the ECJ's turn.
A man marries a woman and later decides to become a woman himself. However, the state of Great Britain does not recognize its gender reassignment as the law prohibits it for persons living in an existing marriage. At least that was the legal situation until the Same Sex Couples Act came into force in December 2014, according to which homosexuals are now allowed to marry. The old law brought the British into trouble at the European Court of Justice (ECJ).
It is true that the Luxembourg judges asserted that a decision was not made on the question of whether the recognition of a gender reassignment should in principle be made dependent on the existence of a marriage. This falls within the competence of the Member States. In the present case, however, it was problematic that the recognition also had an impact on the retirement age. In Great Britain, men born before December 6, 1953 are allowed to retire at the age of 65, while women born before April 6, 1950 can retire at the age of 60 without any deductions. Can a transgender person be forced to get a divorce in order to be able to retire according to his new gender? No, the ECJ decided very clearly (ruling of June 26, 2018, Az. C-451/16).
The plaintiff, who was born a man in 1948, married a woman in 1974 before beginning to live as a woman herself and finally underwent sex reassignment surgery in 1995. The couple subsequently renounced the divorce for religious reasons.
When the person turned 60 in 2008, they applied for the state retirement pension. However, she was denied this on the grounds that her gender reassignment was not officially recognized. Thus, one could not treat her as a woman with regard to the pension either. The problem with recognition was the continued marriage: According to British law at the time, it should first have been declared invalid before the gender change could have been certified.
ECJ: Old-age poverty can also affect transsexuals
The person finally resisted this in the British courts before the Supreme Court of the United Kingdom was induced to refer the question to the ECJ. This now soberly stated: Transgender would be judged differently by the regulation at the time than people who lived in a marriage with the same gender.
A factual reason for this could not be identified in Luxembourg. The judges saw the function of the statutory pension to protect against the risk of poverty in old age as universal. After all, transsexuals are equally affected by this as non-transsexual people.
The earlier regulation, which had called for the annulment of the marriage for a gender change, had the aim of avoiding homosexual marriages. But that has nothing to do with the pension system, which is why this cannot be used as a reason, according to the judges.
The present constellation is thus a case for EU Directive 79/7 / EEC of 1978 for the gradual implementation of the principle of equal treatment of men and women in the field of social security. This is also applicable if the discrimination is caused by a sex change of the person concerned. It is therefore illegal discrimination.
mam / LTO editorial team
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