The Court yesterday reiterated that Council Directive 79/7/EEC also applies to discrimination arising from gender reassignment.
Sarah Margaret Richards, who underwent sex-change surgery in 2001 after being diagnosed with gender dysphoria, applied for a retirement pension at the age of 60, the age at which, under UK law, a woman born before 6 April 1950 is eligible to receive a retirement pension.
That application was denied on the ground that “the claim was made more than 4 months before the claimant reaches age 65”, which is the retirement age for men in the United Kingdom.
Ms Richards appealed, arguing that following the 2004 K.B- case this refusal constituted an infringement of Article 4 of Directive 79/7/EEC concerning the prohibition of discrimination in statutory social security schemes. The national court referred to the ECJ.
The Court first of all reiterated that, although it is for the Member States to determine the conditions under which legal recognition is given to the change of gender of a person, the right not to be discriminated against on grounds of sex is one of the fundamental human rights of the European Union.
The scope of the aforementioned Directive should be interpreted broadly, not only applying to discrimination based on the ground that a person is of one or other sex, but also to discrimination arising from gender reassignment, thus including the unequal treatment to which Ms Richards was subject.
The United Kingdom Government submitted that no Community right has been breached, as entitlement to a retirement pension derives only from national law.
The Court disagreed with this argument. It held that “Community law does not affect the power of the Member States to organise their social security systems, and that in the absence of harmonisation at Community level it is therefore for the legislation of each Member State to determine, first, the conditions governing the right or duty to be insured with a social security scheme and, second, the conditions for entitlement to benefits. Nevertheless, the Member States must comply with Community law when exercising that power." (Para. 33, see also Smits and Peerbooms, paras. 44 to 46, and Kristiansen, para. 31).
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