No marriage, no pension
No marriage, no pension: how a British nurse fought for her trans partner in Luxembourg in 2004.
On 7 January 2004, the European Court of Justice in Luxembourg delivered a ruling that at first glance sounded like dry pension law. At its core, though, it was about whether a state may refuse trans people marriage without any consequences.
The claimant is known in the files only as K.B. She had worked as a nurse for the British National Health Service for twenty years and paid into its pension scheme. For many years she had lived with her partner R., a trans man. The two wanted to marry so that R. would receive the widower's pension after her death. But British law did not recognise his gender reassignment. For the state, R. remained a woman, so marriage was ruled out. And without a marriage certificate, there was no pension.
K.B. went to court, invoking the prohibition of pay discrimination on grounds of sex. The Court of Appeal eventually referred the case to the judges in Luxembourg.
Their answer was nuanced. That a survivor's pension is available only to married people was not in itself discriminatory. The problem lay elsewhere: the couple could not meet the condition of marriage at all because the law prevented them. Such a rule was therefore in principle incompatible with Community law. Whether K.B. could rely on this in her specific case was for the British courts to decide.
The ruling did not come as a complete surprise to London. In the summer of 2002, the European Court of Human Rights had already ruled in the case of the trans woman Christine Goodwin that Britain had violated her rights. Now pressure was mounting from two sides. That same year, the Gender Recognition Act received royal assent. Since the spring of 2005, trans people in the United Kingdom have been able to have their gender legally recognised and to marry in it.