DWP in the dock over unfair treatment of transsexual

The advocate general, who proposes solutions to cases being considered by the European Court of Justice (ECJ), has declared the UK in breach of EU law by not letting a man who became a woman retire at 60.

The Department for Work and Pensions (DWP) said that Sarah Richards – a male-to-female transsexual who underwent gender reconstruction surgery in 2001 – could not draw her pension until 65 as she was still a man.

Under UK law prior to April 2005, the sex of a person for social security purposes was that stated on their birth certificate. A birth certificate can be changed only to rectify clerical or factual errors.

The alleged discrimination lies in the UK’s failure to recognise transsexual persons in his or her acquired gender on equal terms with persons recorded as of that gender at birth.

The advocate general said it was contrary to EU law for a member state to refuse to grant a retirement pension before the age of 65 to a male-to-female transsexual where that person would have been entitled to a pension at the age of 60 had she been regarded as a woman as a matter of national law.

“Given the relatively few people who would be affected by the judgment, the financial implications would not create a risk of serious economic repercussions in the UK,” he said.

ECJ judges are now deciding whether to accept the proposals.

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