In Richards v Secretary of State for Work and Pensions, Richards, a
male to female transsexual, applied to receive her state pension at age
60. The Department for Work and Pensions refused her application
claiming she could not take her state pension until she reached age 65
and so she appealed to the Social Security Appeal Tribunal and then to
the Social Security Commissioner. The Commissioner referred the
question to the ECJ of whether it was a breach of the Equal Treatment
Directive to prohibit a male to female transsexual from taking her
state pension at age 60.
The Advocate General gave an opinion on the issue and held that the
Equal Treatment Directive protects those who have undergone gender
reassignment surgery from suffering discrimination in relation to the
duration of entitlement to statutory pension. The appropriate
comparator in Richards situation is a women who is registered as female
at birth. Therefore, it was a breach of EC law to prevent a male to
female transsexual from taking her retirement pension at age 60.
Notably, Richards was refused her state pension at age 60 prior to
the coming into force in April 2005 of the Gender Recognition Act which
provides that a male to female transsexual will be entitled to state
pension when she reaches age 60. Nevertheless, if the ECJ agrees with
the Advocate General's opinion in Richards (which is, of course, not
binding on the ECJ), the Department of Work and Pensions ought to
prepare themselves for claims from others who were treated in the same
way as Richards, prior to the Gender Recognition Act coming in to force.