European Court Advances Trans Marriage Rights

Case emerged out of pension claims advanced by British couple

The European Court of Justice, which delivers authoritative interpretations of the 1950 Treaty of Rome, the founding document of the European Community, has given a boost to the rights of transgendered people to marry as members of their preferred gender.

On January 7, the court issued a unanimous ruling finding that the failure of Britain’s National Health Services Pension Scheme to allow a couple that includes a transgendered member to participate in the widower’s pension program is “incompatible” with the treaty’s provision that workers receive equal pay for equal work regardless of sex.

The court issued an advisory opinion to the Court of Appeals for England and Wales, which was confronted with a claim by a British woman that her transgendered partner should be entitled to such a pension under the Health Services plan. The couple are referred to in the opinion by the initials K.B. and R.

K.B., the petitioner, is a nurse whose job entitles her to participate in the pension scheme. Her partner, R., was born a woman but had gender reassignment surgery and is now a man. They were unable to obtain a marriage license because Britain bars amending birth certificates to reflect gender reassignments and has a strict legislative prohibition on same-sex marriages. But, after a wedding ceremony authorized by a bishop of the Church of England, K.B. asked the Health Service whether R. would receive a widower’s pension if K.B. died first. The Service’s negative reply sparked the lawsuit.

When the case reached the Court of Appeals, K.B.’s claim that the Service’s refusal to recognize R.’s qualification for a pension violated the European Community equal pay rule led the court to suspend consideration of the case pending review by the European Court of Justice.

In 2002, the Court of Human Rights, another judicial body of the European Community, held that Britain’s refusal to allow couples such as K.B. and R. to marry violated the European Charter of Human Rights (ECHR). The Blair government reacted to the 2002 ruling by vowing to enact laws correcting Britain’s treatment of transsexuals, but that legislation has not yet been enacted.

The European court made clear that, in general, it is up to each country to determine whether marriage should be a prerequisite to qualify for a widow or widower pension. But, it also noted that “a couple such as K.B. and R. are quite unable to satisfy the marriage requirement… for the purpose of the award of a survivor’s pension.” R.’s inability to access “part of the pay” of K.B. was therefore deemed impermissible sex discrimination.

However, this does not end the matter, since the European Court is not empowered simply to order the British National Health Service to recognize R. as a qualified participant. Instead, the European Court’s interpretation of Community law will be sent back to the Court of Appeal, which will then have to determine how to interpret British law in light of that country’s Community responsibilities.

Given the Blair government’s commitment to seek legal reform for transsexuals, it is possible that this issue can be resolved legislatively, but the question remains whether it will be done in time to benefit K.B. and R., since at present they are still unable to marry in Britain. But the Court’s decision, unanimously issued, provides further evidence that the British government will need to enact legal reform, and may provide a basis for the Court of Appeal to order some relief for K.B. and R.

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