The requirement, which stems from UK domestic law before same sex marriage was introduced in 2014, amounts to direct discrimination on the basis of sex and is not open to objective justification, according to Court of Justice of the European Union (CJEU) advocate general Michal Bobek. The UK Supreme Court referred a question on the position under EU law to the CJEU last year.
Bobek based his opinion on a narrow interpretation of the question submitted to the CJEU by the Supreme Court, but also acknowledged that the case had wider implications. However, he did not accept an argument from the UK that finding in favour of the woman in this case interfered with the right of EU member states to impose conditions on gender reassignment recognition.
"Such an approach would make the scope of application of EU law related to the prohibition of discrimination on grounds of sex entirely dependent on the various nationally established conditions," he said. "Unrestrained discretion in this regard would mean running the risk that discrimination on the basis of gender reassignment, forbidden by [EU law], could return through the back door in the form of prerequisites or conditions attached to the recognition of status, no matter what their content."
"The establishment of conditions for legal recognition of gender reassignment remains a task for the member states. This does not mean, however, that when adopting such procedures and designing the conditions, member states act completely outside the scope of EU law and therefore escape any kind of scrutiny. Member states must, after all, exercise their competences in a way which complies with EU law, in particular the provisions relating to the principle of non-discrimination," he said.
The case will now go on to be considered by the CJEU. Opinions of advocate generals are not binding on the court, but are followed in the majority of cases.
The woman at the centre of the case, known only as MB, was registered as male at birth on 31 May 1948 but has been living as a woman since 1991 and underwent gender reassignment surgery in 1995. She was married on 21 September 1974 and remains married to her wife. The couple has no intention of annulling the marriage.
In 2008, at the age of 60, MB applied for the UK state pension. Women in the UK born before 6 April 1950 can claim their state pension from the age of 60, although the state pension age is increasing to match that of men over a period of time for women born after this date. MB's state pension application was refused on the grounds that she does not hold a valid gender recognition certificate. This is because, before same sex marriage become available in the UK, married individuals were not entitled to a full gender recognition certificate changing their legally recognised gender because the law at the time only permitted marriage between a man and a woman.
In the opinion, advocate general Bobek said that he "[could not] but conclude that the requirement to be unmarried, applicable in fact only to transgender persons in order for them to access a state pension, is contrary to [the EU's Equal Treatment Directive]". MB's position was comparable to that of a cisgender woman, registered as female at birth, meaning that treating her differently to a cisgender woman was discriminatory, he said.
"Under the national legislation at issue, full legal recognition of gender reassignment is made conditional on civil status," he said. "This has a specific and concrete consequence, which matters in this case: for transgender persons only, access to a state retirement pension is tied either to being 'single' or to the ending of a marriage."
"Conversely, access to retirement pensions for cisgender women does not in any way relate to their marital status. It concerns only contributions made and eligibility based on age ... Thus, looking at the issue of treatment from the point of view of access to a state retirement pension, the difference in treatment in this case can be put in quite simple terms: marital status does not play any role for cisgender persons in order to access a state retirement pension. On the other hand, previously married transgender persons are subject to a requirement to annul their marriage," he said.
The EU's Equal Treatment Directive only allows for specific exemptions, including allowing member states to maintain different retirement ages for men and women. These specific exemptions do not extend to the circumstances of this particular case, Bobek said.
The specific derogation allowing for different retirement ages is due to "progressively disappear ... through the convergence of the retirement ages for men and women", both in the UK and elsewhere in the EU, Bobek said.
"As the advocate general says, this case could be said to be about gender reassignment, rather than access to state pensions," said pensions expert Stephen Scholefield of Pinsent Masons, the law firm behind Out-Law.com. "However, it is not surprising that there is a desire to guard against discrimination by the back door and to adopt a wide approach to striking discrimination down."
"The usual rules still apply - an argument that discrimination ought to be allowed is rarely one that the courts are quick to uphold," he said.