By Simon Zekaria - 7th January 2004
Europe’s highest court on Wednesday told the UK that national laws effectively blocking transexuals from claiming pension rights flout EU law.
A female nurse, identified only by the initials KB, claimed sex-discrimination after being refused a widower’s pension provision for her partner who used to be a woman.
UK law does not allow birth certificates to be changed to reflect new sexual identities, so a union between a woman, and a man who used to be a woman, is still classed a same-sex marriage which remains illegal in the UK.
Defending, the UK authorities argued that pay rights cannot exist for transsexuals if marriage between them is not covered by domestic legislation.
While the court on Wednesday said the scheme itself, restricted to married couples, could not be classed as discriminatory on grounds of sex, laws which prevent citizens from qualifying for pension benefits because of these conditions do breach EU law.
The ECJ verdict follows in part the non-binding legal opinion of a senior court judge from June last year.
The ‘Advocate General’ backed KB by finding the health service to be discriminatory and ruled that technical questions of this nature could be avoided if the UK gave "full effect" to EU rights laws.
The final court ruling matches the AG opinion in eight out of ten cases.
Whilst the principles of equal pay between men and women and non-discrimination are enshrined in EU law, Britain lags behind the rest of Europe in giving marriage rights to transsexuals.
But there is change in the pipeline – signifying that Wednesday’s EU court ruling was only going to go one way.
The European Court of Human Rights in Strasbourg ruled in July that British laws preventing transsexuals from changing their sex on their birth certificate – so prohibiting marriage - breach human rights.
Despite the fact that the European Convention on Human Rights refers to “the right of a man and woman to marry," the court said gender should not be restricted to "purely biological criteria".
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