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26th Nov 2022

Transsexual wins pension battle in EU court

The EU's highest court has ruled that a British law defining pension rights based on birth gender violated fundamental human rights.

The Luxembourg-based European Court of Justice on Thursday (27 April) ruled in favour of a transsexual woman's right to cash in her pension money, against British claims that member states have their own right to set pension rules.

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  • Discrimination against persons on grounds of gender is against human rights, the ECJ ruled (Photo: EUobserver)

60 year-old Sarah Margaret Richards, who was a man until 2001, was told by UK authorities she had to wait until the age of 65 to receive pension money, the age when all British men get their pensions.

In the UK, women are entitled to cash in their pension funds at 60 years of age.

Under UK law at the time - 2002 - the sex of a person stated on his or her birth certificate was decisive for pension rights, and a birth certificate could only be changed to rectify clerical or factual errors, not to reflect sexual identity.

A new Gender Recognition act however came into force in the UK last year, allowing gender recognition certificates for transsexuals, but without retroactive effect, which is why Ms Richard's appeal to a UK court failed.

In its judgement, the ECJ observes that the right not to be discriminated against on grounds of sex is one of the fundamental human rights, to which all EU member states have signed up to.

"Where a full gender recognition certificate is issued to a person, the person's gender becomes for all purposes the acquired gender," the court's judgment states.

"If the acquired gender is the male gender, the person's sex becomes that of a man, and if it is the female gender, the person's sex becomes that of a woman," it continues.

The case will now be referred back to UK social security commissioners for a domestic decision.

Human rights for all

The ECJ ruling comes as other voices have been raised demanding equal rights for all persons, despite sexual orientation.

Earlier this week, the mayor of Amsterdam sent letters to his counterparts in eight European cities warning that gay intolerance was increasing in Europe.

Mr Cohen said he was "particularly concerned by the news that homophobic attitude and behaviour is propagated by measures and policies of local authorities in some of the new EU member states".

When he was mayor, Polish president Lech Kaczynski tried to block a gay pride march in Warsaw in June while Portugal recently turned down a lesbian couple's request for a marriage licence.

Recently the Latvian and Lithuanian parliaments decided to table amendments to their constitutions prohibiting same-sex marriage.

Mr Cohen's letter was sent to mayors in Warsaw, Prague, Lisbon, Dublin, Vienna and in the Baltic capitals of Riga, Tallinn and Vilnius, as well as to EU justice commissioner Franco Frattini.

Mr Frattini's spokesperson told the EUobserver that the commissioner had received the letter, but said that the matter does not fall under EU competence.

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